Topic Review

During times of instability within the nation, speech and the freedom of expression in perhaps negative connotations towards the government has and will always be more susceptible of restraint and infringement of personal rights. During such cases where the courts had to come to challenging verdicts it was evident that delineating dangers of incitement versus angry and negative speech would prove challenging. However, protecting national security and stopping immanent violence have proven to be sufficient grounds that outweigh certain speech protections. From such events, we the courts have developed tests like the Brandenburg/Hess Test, which deals with incitement and speech that is more than likely to produce an immediate threat. On top of that courts also rarely find media liable since reasonable people should be able to foresee harm headed their way. Speech needs to become an overt act of threat or intimidation for it to be regulated and punished.

Defining Key Terms

USA Patriot Act- uniting and strengthening America by providing appropriate tools required to intercept and obstruct Terrorism Act of 2001

Chilling Effect- discouragement of a constitutional right especially free speech, by any government practice that creates uncertainty about the proper exercise of that right

As Applied- legal phrase referring to interpretation of a statute on the basis of actual effects on the parties in the present case

Clear and Present Danger- doctrine establishing that restrictions on First Amendments rights will be upheld if they are necessary to prevent an extremely serious and imminent harm

Incorporation Doctrine- 14^th Amendment concept that most of the Bill of Rights applies equally to the states

Negligence- generally, the failure to exercise reasonable of ordinary care

Proximate Cause- the legal determination of whether it is reasonable to conclude the defendant’s actions led to the plaintiff’s injury

Fighting Words- words are not protected by the First Amendment because they cause immediate harm or illegal acts

Hate Speech- category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like

Underinclusive- First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment

Viewpoint-based Discrimination- government censorship or punishment of expression based on the ideas or attitudes expressed; Courts will apply a strict scrutiny test to determine whether the government acted constitutionally

True Threat- speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

Relevant Doctrine

Fighting Words- First Amendment does not protect words that:

1.     Are directed at an individual

2.     Automatically inflict emotional harm or trigger violence

True Threat- “utterance in a context of violence that can lose its significance as an appeal to reason and become part of an instrument of force”, it is not meant to be sheltered by the constitution

Incitement- test establishes that speech loses First Amendment protection when it is likely to prompt imminent violence. The incitement test allows government constitutionally to prohibit speech that is:

1.     Directed toward inciting immediate violence or illegal action

2.     Likely to produce that action

Negligence- plaintiff must prove breach of media’s duty of care because the content posed:

1.     Reasonable foreseeability of harm

2.     Proximate (directly related) cause of the harm

Important Cases

Tinker v. Des Moines Independent Community School District- Supreme Court Ruling on Behalf of Student Expression. Mary Beth Tinker was a 13-year-old junior high school student in December 1965 when she and a group of students decided to wear black armbands to school to protest the war in Vietnam

Elonis v. United States- case concerning whether conviction of threatening another person over interstate lines requires proof of subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement as threatening

Current Issues or Controversies

One current controversy that comes to mind would be when alt right speakers are invited to universities to give speeches that are not inherently trying to cause commotion, however usually end up inciting violence and turmoil on the campus or grounds of the speech. These events bring about protesting on both sides which leads to police intervention which usually coincides with violence as well. As far as free speech goes, the speaker is not doing anything wrong, they have the right to come and speak, but with everything that is tied to their movement it is hard to see that they are simply “trying” to push their agenda of conservative ideals to a new generation.