Chapter 3 - Lecture notes 3 PDF

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Chapter 3 Lecture Notes...

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1. The First Amendment in Schools Censorship of Expression in Public High Schools ● Tinker v. Des Moines (will be on test) ○ The US Supreme Court ruled that students could not be suspended for wearing black armbands to school in protest of the Vietnam War ○ Students “do not shed their rights at the schoolhouse gate” ● Barber v. Dearborn Public Schools ○ Bretton Barber, high school junior, wore anti Bush shirt to school and was asked to take it off (International Terrorist) ○ The court found the request unconsitutional ● Hazelwood School District v. Kuhlmeier ○ The US Supreme Court ruled it was acceptable for a school to censor a high school newspaper produced as part of a journalism class if the school’s actions are reasonably related to “legitimate pedagogical concerns” ○ Includes censoring material that was ungrammatical, poorly written, inadequately researched, biased, vulgar, etc. ● Dean v. Utica Community Schools (2004) ○ A district court judge found that a student authored article questioning whether school buses were causing injury and illness to local residents was not inaccurate and therefore could not be censored under the Hazelwood “legitimate pedagogical concerns” standard ○ The judge found the censorship unconstitutional ●

Before a highschool newspaper can be censored, two questions must be asked 1. Is the newspaper published at a private or public high school? 2. What kind of newspaper is it? a. Student run: school has the most right to censor b. Student run that uses school resources without as much structure: less right to censor c. Student run newspaper not written on school grounds: least censorship

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Bethel School District v. Fraser (1986) ○ The Supreme Court found that officials at Bethel High School did not violate the free speech rights of Matthew Fraser when they suspended him for making a sexually suggestive nomination speech for a fellow classmate ○ The court refused to apply the political speech standard in Tinker, ruling that society has an interest in “teaching students the boundaries of socially appropriate behavior” ○ Ruled in favor of schools Frederick v. Morse (2007) ○ Bong Hits 4 Jesus ○ The 9th Circuit applied the Tinker standard, noting there was no substantial and material disruption of educational activities when the banner was unfurled

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Supreme Court ruled that Frederick’s First Amendment rights were not violated and that schools may take steps to discourage illegal drug use

Censorship of College Newspapers ● Kincaid v. Gibson (2001) ○ The 6th US circuit Court of Appeals ruled administrators at Kentucky State University could not ban the distribution of the college yearbook simply because they did not approve of the content ○ Court ruled that the yearbook was a public forum ● Hosty v. Carter (2005) ○ Administrators at Governors State University in Illinois demanded prior review and approval of the student newspaper before publication ○ The case centered around whether the “legitimate pedagogical concerns” standard of Hazelwood could be applied to college newspapers ○ The 7th Circuit ruled that “speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level” ● ● ● ●

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In 2006, California passed legislation prohibiting prior restraints and censorship by university administrators of public college and university newspapers There have been many attempts to censor advertising for controversial products or ideas Student newspaper censorship via cutting funding Under the Clery Act, all colleges and universities that participate in federal student-aid programs are required to give timely warnings of campus crimes that represent a threat to the safety of students and/or employees Theft of free newspapers as a way of censorship Pitt News v. Pappert (2004) ○ The 3rd Circuit Court of Appeals ruled a Pennsylvania law that banned advertisements containing references to “the availability and/or price of alcoholic beverages” in university newspapers was unconstitutional because no connection between the ads and underage drinking could be made ○ The appellate court ruled that the law was an “impermissible restriction on commercial speech”

Book Banning ● Board of Education v. Pico (1982) ○ Ruled that books can only be banned due to education suitability and if its pervasively vulgar

2. Time, Place, and Manner Restrictions For a law to be constitutional: 1. Rules must be content neutral on their face and in their application

2. Rules must not constitute a complete ban on one kind of communication 3. Rules must be justified by a substantial state interest 4. Rules must be narrowly tailored to not restrain more speech than necessary to further the stated govt. Interest (Set of criteria called the intermediate scrutiny standard of judicial review) Strict scrutiny: ● Requires the govt. To prove a compelling interest (not simply substantial state interest) and that the statute restricts no more speech than is absolutely necessary to serve that interest Forum Analysis Traditional Public Forums ● Highest level of First Amendment Protection ● Places long devoted to public speech such as street corners, public parks Designated Public Forums ● Places created by the govt. For expressive activities ○ City-owned auditoriums, fairgrounds, community meeting halls ● The govt. Must have an affirmative intent to create a public forum in order for a designated public forum to arise ● Intent may be determined by ○ Explicit expressions of intent ○ Actual policy and history of practice in using the property ○ Natural compatibility of the property with expressive activity Public property that is NOT a public forum ● Public property which is not by tradition or designation a forum for public communication ● Public property that is off-limits to expressive activities ● Prisons, military bases, airport terminals, postal service mailboxes, utility poles Private Property ● No first amendment guarantees ● Places not owned by the government ● 1974 California exception

3. Other Prior Restraints Son of Sam Laws * ● About 40 states and the federal govt have laws that stop felons from receiving money

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that might be earning by selling stories about their crimes Overruled in 1991 in Simon and Schuster Inc v. New York Crime Victims Board

The U.S. Supreme Court has ruled: ● Cities may not bar residents from posting signs on their own property ● A buffer zone created between abortion clinics and protesters in constitutional if the zone is small or if there is a narrowly tailored restriction on the size or duration of the demonstration ● States may not prohibit the distribution of anonymous campaign literature Hate Speech & Fighting Words Chaplinsky v. New Hampshire (1942) ● Jehovah’s witness ● Called cop a “god damned racketeer” and “a damned fascist” ● Convicted because under NH Offensive Conduct law it is illegal for anyone to address any offensive derisive or annoying word to anyone who is lawfully in any street or public place The U.S. Supreme Court created the “fighting words doctrine” ● Fighting words are those which by very utterance inflict injury or tend to incite an immediate breach of the peace ● Fighting words may be prohibited if ○ There is a face to face encounter ○ The encounter could result in an immediate breach of peace R.A.V. v. St.Paul (1992) ● Whoever places on public or private property, a symbol, object, characterization, etc, including but not limited to a burning cross or a Nazi swastika, which one knows arouses anger, alarm, or resentment in others on the basis of race color creed religion or gender commits disorderly conduct and shall be guilty of a misdemeanor ● U.S. Supreme Court struck down a city ordinance that banned the display of a burning cross or Nazi swastika ● The statute was invalid because it was not content neutral; it targeted specific kinds of hate speech

6. The First Amendment and the Information Superhighway Communications Decency Act (1996) ● Legislation enacted by Congress to address minors access to pornography ● The U.S. Supreme Court in 1997 ruled that key provisions of the act were

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unconstitutional Section 230 of the CDA created a federal immunity to any cause of action that would make ISPs (internet service providers) liable for information originating with a third party user of the service The Court ruled that the internet should receive the highest level of First Amendment protection, equal to that granted to newspapers, magazines, and books Content of message is generally the subject of regulation, rather than the medium The printed press enjoys the greatest amount of freedom from govt. Regulation Broadcast media like TV and radio enjoy the least amount of freedom from regulation The SC ruled in 1997 that communication via the internet should receive the same amount of protection as the printed press, ergo the most first amendment protection

What medium has the least amount of protection: broadcast media Net Neutrality ● The concept that internet service providers treat all traffic and content similarly, and not charge more money for, or blocking access to, fast services ● Current FCC Commissioner -- Ajit Pai...