Free Speech
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Arts Law Class 5
Free Speech
Ask people what characterizes this country, one of the firs things they'll say is "freedom of speech". We take great pride in it - but there are LOTS of constraints and restrictions
We aren't talking about freedom, but restrictions. Defining by what it is not.
We do have the first amendment. But lots of laws restrict freedom of speech.
HOW CAN THAT BE?
HOW CAN COURTS ALLOW IT?
Constitution is filled with contradictions - - congress has right to regulate commerce / maintain order etc. To do that there needs to be a balance attempted between freedom and the need for rules. Balance can result in a pendulum swing
Big recent shift in anti-terrorism laws. Rule of order has overtaken freedom of speech.
Why is freedom of speech in Constitution?
To be democratic society , public must have freedom to communicate (elections etc.) and freedom of commerce. Debate is necessary.
How can FCC allow monopolization today if free speech is to happen?
Another clause is the supremacy clause
Article 6 - say federal law and Bill are always over state laws.
It prohibits states from enacting laws over federal law
Amendment 14 extends this further
Pendulum swinging to states rights today ("Constitutional Crisis") Arts are at the forefront of that with free speech
WHAT FREE SPEECH ISN'T
12 limitations
1. Slander / liable - "falsehood about someone else communicated to a 3rd party, that causes injury"
sometimes Injury can be presumed - don't have to prove that you were hurt in cases of sex or scandle.
Standard is higher for newspaper than for ordinary people — press gets more latitude because of freedom of press. UNLESS it its done maliciously, or as the result of negligence. It is difficult to win against a newspaper.
2. Truth in Advertising
Great than ads in paper/ TV - includes brochures stands is if you falsely state who you are or compassion you can be held liable.
Liberally interpreted but risk that competitor may bring suit for unfair companions / false claim.
3. Lobbing & Advocacy activities - Director / administrator has restrictions. Private citizens can say / lobby. Non-profit does not have that right. You can educate (loophole). Risk tax exemption / sec. Of state can forcibly dissolve organization. N.P.'s can use less than 13% of budget to indirect lobbying activities (but if your even close to 13% you risk being challenged)
4. / 5. Rights of privacy / publicity - conflicting interest in law. Sometimes privacy is so great if prevents others from speaking about those things.
EX: you can't write a biography with things gotten in confidence (Public information is allowable)
Kinda comes back to fair use criteria (See intellectual property notes) Educational is more allowable (Biography about Bob Hope vs. Trying to sell Martini's)
6. Fighting words to incite violence or cause acts that are illegal . Standard 1. Character of words intended to incite violence 2. Probability that words will be acted upon (i.e. "Lets overthrow the government")
This resutls in a lot of self censorship because they don't wantto to run risk of being sued (EX recording companies are holding back recording artists (gansta rap)
7. Certain Objects that ncan not be desecrated — even if desecration is a form of speech
EX: The us dollar bill
EX Military Uniforms
EX; Cross Burning
Does that preserve justice and order in society one way or the other?? Probably not!)
Remember the point is to balance the maintaining order while allowing free exercise of protest
* * Not all laws are enforced (there are lots of them!) But a zealous prosecutor and nervous administration can be brought out of the wood work!!)
8. Hate speech
9. Speech that takes form of showing Human Body - -nuditiy / "Naked Speech" (ankles / legs thought to be inappropriate not long ago!) Courts (society) liberalizing rather quickly!
Provocative Dance as performance art
The body as a form of speech was not recognized until recently (could that pendulum swing back too?) "Dance Clubs" in redlight district is "dance" and protected free speech (or is it more?) Often comes down to intent - - what was a person trying to say and was the communication intended to incite base thoughts and response or another ide (art form / political context)
10. Public Nudity - 4 obscenity issues
* Preserving public order / preserving health
* Community standard (big unknown! What is community standard? Pron sells better in bible belt - - is community standard what sells, or what community claims?)
* patently offensive depiction of body or sexual activity Offensive is difficult to define - - - is woman without a veil offensive???)
* Dance / depiction / whatever lacks serious literary / artistic / political / scientific value
(What does that mean??)
Mensraya - have knowledge / intent of what your doing
plays out in all of the law intent to comint a crime vs. Without intent / neglect
11. Voluntary contractual agreements
parties agree not to talk or say certain things or to certain people
ex; with an employer
ex; entertainment industry
ex: personnel policies
12. Court ordered gag order
parties in a dispute - - under court order not to talk - - very common
