[SOUND] The ninth major part of my lecture examines freedom of speech under the First Amendment. Now, this is a topic that could warrant an entire course by itself, and I hope there'll be the opportunity to do that. But here what I want to do is take time and provide an overview of the law with regard to freedom of speech. I think the appropriate question to begin with is why protect freedom of speech as a fundamental right. The First Amendment, of course, says that Congress shall make no law abridging freedom of speech. But why is freedom of speech a fundamental right? What's interesting is there's no consensus among the justices or scholars. Yet, the choice of explanation as to why freedom of speech is a fundamental right can have real implications, in terms of what's protected or unprotected speech. One argument is, do we protect freedom of speech because it is important to democracy and the political process. Democracy can only work if people are able to evaluate candidate that requires that the speech to praise and criticism. It requires that those who are running for office be able to express their views and be able to criticize the existing government. Everyone agrees that of course, freedom of speech is important for democracy in the political process. The question comes up, is that the only thing that should be protected by the First Amendment? Robert Bjork was a Yale law professor, a Federal Court of Appeals Judge, a nominee who was rejected for the Supreme Court. Believed that only political speech should be protected by the first amendment. So speech that was just for entertainment or commercial purposes would have no first amendment protection. It could be regulated, prohibited by the government however it wanted. Now, the question is why just political speech, the question also is can we really separate what's political from non political? Satire, for example, and also it's often been said. That everything in our life could be important to us relative to the political process. Is commercial advertising for political drugs just that commercial speech? Or is it political because if that's something important in our lives and something that can then influence how we participate in the political process. A second theory has been developed to explain why we protect the freedom of speech. And that's that freedom of speech is crucial for the marketplace of ideas to work. The metaphor of the marketplace of ideas comes from Oliver Wendell Holmes can be tied back to John Stuart Mill. It is we don't want the government to determine what's true and what's false but let all ideas be expressed then let the marketplace of ideas without what's going to be believed or not believed. So the marketplace of ideas is based on a distrust of the government to make choices. It's also based on faith. Faith that the competition of ideas, will lead to the better ones triumphant. But others question that. Others ask, why believe that good ideas will triumph over bad ones? Look at world history, where just the opposite was the result. There's also concern that for a period of time, that bad ideas may triumph to enormous harm to people and is the first amendment just about ideas? What about emotions? What about music? Art that transmits emotions? What about sexual speech that produces a physical response as well as an emotional one? What about speech that produces disgust as an emotion? Isn't it protected even if there's not an idea attached? Another theory has been developed that says that we protect freedom of speech as a fundamental right, because of autonomy considerations. The notion is the freedom of speech is integral to each of our autonomy, that how we develop our ideas is a result of the speech we receive and the way we express ourselves. We test our ideas by speaking them. Or even more basically, this theory says, the fundamental aspect of our personhood, of our freedom should be to express ourselves. Now, there's a way in which this is persuasive. There's a way which it begs the question. Why of all of the human behaviors do we select this one and say, this is so important autonomy? That's a fundamental right. Also, what about speech that infringes the autonomy of others? Hate speech, for example. Does that, then say, that the autonomy of one, the speaker is more important of the autonomy of the other, the listener? How is that to be resolved? I'll come back and refer to these theories, there's no definitive answer to the question, why do we protect freedom of speech as a fundamental right. But it's certainly worth thinking about that question. Justices, scholars have often discussed it. What I'd like to talk about next with regard to freedom of speech is some basic principles In terms of the methodology of the first amendment. These are some basic principles in terms of how the Supreme Court says courts, in matter of legislature, should approach issue of freedom of speech. The first basic principle I've talked about, and the most important is the distinction between content-based and content-neutral laws. With regard to this distinction between content-based and content-neutral laws, the Supreme Court has said that generally If a law is content-based, it has to meet strict scrutiny. There's two separate ways to decide if a law is content-based. One is called a subject matter restriction. A subject matter restriction is an application of the law depends on the topic of the message. Example, Chicago had an ordinance say, no picketing in residential neighborhoods, unless it was a labor protest related to place of employment. Speech was allowed if it's topic was a labor protest. Speech wasn't allowed on any other topic. The court said, that's a subject matter restriction, a content-based restriction. It's to be allowed only if it's necessary to achieve a compelling government purpose. Well, another example from June of 2015 Case called Reed versus Town of Gilbert. The town of Gilbert is in Arizona. He like local governments all over the country had ordinance prohibiting signs and public property. But it had over two dozen categories of exceptions, one exception was for political science. The witness was very permissive as political science. They could be quite large up to three feet by three feet, they can remain up through the election season, they can be more than one in the same piece of public property. Another exception was the so called directional signs, signs to give people directions to meetings or to worship services. Here, the ordinance was very restrictive. The sign could be up only 12 hours before the meeting, and it came down a couple of hours after. Clyde Reed was the pastor of The Good News Church in Gilbert Arizona. He said his church relied on science to let people know where worship service should be held. The Supreme Court unanimously declared the Town of Gilbert ordinance unconstitutional. The Supreme Court said it's a subject matter restriction refer content base restrictions speech. If the subject matter is political, then the signs are treated differently than if the subject matter is directional. The Court used strict scrutiny and declared this unconstitutional. In fact, Justice Kagan, in an opinion creating the judgement, said, it's clear this ordinance is unconstitutional. She says it would fail the strict scrutiny test. The intermediate scrutiny test or even bluff test. So if the law is content-based, it generally has to meet strict scrutiny. By contrast, the court says, or there's two ways to find a laws content-based. One is the subject matter restriction that I've just discussed, the other way of finding a laws content-based is a so-called viewpoint restriction. A viewpoint restriction is where the application of law depends on the ideology of the message. Imagine that a city has an ordinance that says pro-war demonstrations allowed in the city park, but anti-war demonstrations are not allowed. That's a viewpoint restriction, and clearly unconstitutional. Or imagine a campus has a rule that says, speech praising the chancellor is allowed, but speech criticizing the chancellor is not allowed. That's, again, a viewpoint restriction. And viewpoint restrictions virtually never are allowed. Now, if a law is content neutral, if it applies to all speech the same regardless to the topic, and regardless to viewpoint. Then, it only has to meet an immediate scrutiny, then it only has to be substantial to important government purpose. Imagine a city had an ordinance, prohibiting all parade demonstrations in a particular city park. It prohibits all parade demonstrations whatever your topic, whatever their view point. That would be allowed, so long as the government an immediate scrutiny. So the questions I always ask my students, isn't it ironic, if not even perverse, that a law that regulates more speech is more likely to be upheld than a law that limits less speech? If the city says, no parades and demonstrations, then it only has to meet the lower level of review in immediate scrutiny. But if it prevents just some speech based on some subject matter, speech base on some viewpoints then it has to meet strict scrutiny. I go, why would that be? Of course, the answer is that above all we don't want the government to engage in view point discrimination. We don't want the government to say, these views we like and these views we don't like and so. The courts always said that any effort by the government to try to suppress a particular viewpoint is almost per se unconstitutional. I can't think of an instance where a viewpoint discrimination has been upheld. And the court says, often the government can achieve viewpoint restrictions through subject matter laws. Imaging in the early 1960s, Alabama adopted the law said there could be no demonstrations for against segregation and let's face it's few point neutral but the effect with obviously be very much view point based. So if a law is content-based, subject matter or viewpoint, it has to meet strict scrutiny. If it's content neutral, then it only has to meet an immediate scrutiny. A second important principle with regard to the methodology of the First Amendment is that so called prior restraints on speech, but usually unconstitutional. What do I mean by prior restraint? It's a court order that stops speech before it occurs. It's a licensing system with regards to speech. Now, long ago in England, Blackstone, in his famous commentaries on English law said that above all, freedom of speech is an absence from prior restraint on expression. The Supreme Court, early in American history, said all the first amendment prohibits is prior restraints. So let me explain more what I mean by prior restraints. And ask you to think about why are prior restraints so bad. I said one kind of prior restraint is a court order stopping speech. A Court could issue a temporary restraining order or preliminary injunction preventing speech. The most famous case of this you might remember was New York Times versus United States. The Pentagon Papers case in 1971. The federal government went to federal court for an injunction to stop the New York Times from the publishing the Pentagon Papers. History America's involvement in the Vietnam more. The supreme court ruled against the United States government. The court said the United States government failed to meet the heavy burden. Strict scrutiny, necessary to justify such a court order, such a prior restraint. Or another example, where prior restraints, in the form of court orders, are not allowed, is that gag orders on the press to prevent prejudicial pretrial publicity are almost never allowed. Courts, for a time, in high profile, much sensationalized cases, would try to put a gag order on the press, a temporary restraining order, a preliminary injunction to stop pretrial reporting to [INAUDIBLE] the defendant's right to a free trial. But the Supreme Court, in the case called Nebraska Press versus Stuart, 1976, made clear that such laws were most always unconstitutional. Another form that a prior restraint can take is a licensing system. This is where the government requires a license, or permit for speech. The Supreme Court has said, the government can acquire a license or a permit for speech. Only if it is an important reason for licensing. And only if there are clear criteria living almost no discretion to license of the way. Also, they have the procedural safeguards. Like a requirement for prompt to termination of license request and to dish a review of license denials. So example, a city in Dallas an ordinance saying, in order to have a demonstration, on city side rocks, a permit is necessary. Permits will be granted on a first come, first served basis. And if somebody is denied a permit, then that'll be the opportunity for a hearing and judicial review. The Supreme Court says that's constitutional. The court has said in my hypothetical that there's an important reason for licensing, making sure there's not more than one demonstration in particular place and time. The quote has said that this clear criteria, first come first serve and there's procedural safeguards. Why is the court particularly concerned about prior restraints? Well, I think the court fears based on historical experience that when the government has the power to censor, it will use that power to censor. And that the government will prevent speech that it would never later try to prosecute and punish. Now, a law is not a prior restraint. Just because it prohibits speech. That would turn every law that regulates speech into a prior restraint. Prior restraint must be understood as a term of art. It's referring to things like court orders that stop speech before they occur, licensing systems designed to stop speech before they occur. And the Supreme Court has said such regulation has to meet heightened scrutiny.
