I know there are limits on free speech... what are they? and how does this play out in practical terms...? for example, obscenity is not protected speech, but because pretty much anything can get itself called artistic, this is of no real practical consequence.
Or for security reasons, protests are often limited to a certain location... this has been discussed a lot WRT the "free speech zones" but this is commonly applied to protests at abortion clinics as well... also, there are rules regarding disseminating campaign information within certain distances of a polling location... so it seems that restricting speech from certain locales is appropriate and even common.
posted
Speech that impinges on another's rights is restricted. Also speech that incites a riot, etc.
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posted
KQ, is the standard on those that something else has to happen? i.e. - if the imflammatory speech doesn't actually cause the intended riot, or the harassing speech doesn't actually prevent someone from excercising their rights, is it of no consequence?
edit: in case it's not clear to anyone from another country, I'm here concerned with what's legal under the First Amendment to the US Constitution, not what ought or ought not to be the law.
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posted
In many cases it is not speech which is restricted, but the action that the speech undertakes. Such as inciting a riot, or conspiring to murder.
Regarding things like protesting, that is done under the guise of keeping the peace, providing for the public safety, that sort of thing. Note that protesters who feel they have been restricted to an unrealistic protest location have successfully sued -- protest zones need to be chosen such that the protest has a forum.
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posted
so how does one go about proving that the speech is designed to incite a riot?
or for the flip side, if a speech *does* incite a riot, is it automatically considered to be unprotected (i.e. that the riot was the intended outcome)?
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quote:Freedom of speech in the US follows a gradated system, with different types of regulations subject to different levels of scrutiny in court challenges. [edit]
Time, place, or manner restrictions
These get the lowest level of scrutiny and are usually upheld, unless their requirements have an especially burdensome impact on speech. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another). [edit]
Content-based restrictions
Restrictions that require examining the content of speech to be applied must pass strict scrutiny. [edit]
Viewpoint-based restrictions
Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are almost always overturned, unless they fall into one of the courts special exceptions. [edit]
Special exceptions
Obscenity, defined by the Miller test by applying contemporary community standards, is one exception. It is speech that does one of the following: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)
Fighting Words are words or phrases that are likely to induce the listener to get in a fight. This previously applied to words like nigger, but with people getting less sensitive to words, this exception is little-used.
Speech that presents a clear and present danger may also be restricted. The canonical example, enunciated by Justice Oliver Wendell Holmes, is yelling "Fire!" in a crowded movie theater. The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content.
Restrictions on commercial speech, defined as speech mainly in furtherance of selling a product, is subject to a lower level of scrutiny than other speech, although recently the court has taken steps to bring it closer to parity with other speech. This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company). [edit]
Prior restraint
If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what's illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would "surely result in direct, immediate and irreparable damage to our Nation and its people" (New York Times Co. v. United States). In general, US courts have tended not to permit prior restraint since the case of Near v. Minnesota in 1931, and have allowed it only in exceptional circumstances.
I don't take this class until next semester, but I do know these are the general categories of exceptions.
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posted
Just because it's unproteced doesn't mean it's automatically punished; it means governments may pass laws restricted or limiting it, or allow private citizens to sue for damages.
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posted
No, prior restraint is when the government stops it from being published. Laws which punish speech after its been made are not prior restraint, although they are surely a form of censorship.
Prior restraint, even of unprotected speech, has a heavy, heavy presumption against its constitutionality. A lot of the horror at prior restraint stems from old requirements that printing presses be licensed and each publication approved before printing. Publishing anything that wasn't approved was a crime.
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quote:The United States Supreme Court's first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, 47 in which a five-to-four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an ''obscene, lewd and lascivious'' or a ''malicious, scandalous and defamatory'' issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. While the dissenters maintained that the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication without advance approval of an executive official, 48 the majority deemed the difference of no consequence, since in order to avoid a contempt citation the newspaper would have to clear future publications in advance with the judge. 49 Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. ''[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.'
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