scholarly journals Freedom of Thought in the United States: The First Amendment, Marketplaces of Ideas, and the Internet

2021 ◽  
pp. 1-34
Author(s):  
John Gregory Francis ◽  
Leslie Francis
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
Individual Autonomy ◽  
The Internet ◽  
Regulatory Policies ◽  
Commercial Activities ◽  
Wide Range ◽  
Freedom Of Thought

Abstract Freedom of thought is not directly protected as a right in the United States. Instead, US First Amendment law protects a range of rights that may allow thoughts to be expressed. Freedom of speech has been granted especially robust protection. US courts have extended this protection to a wide range of commercial activities judged to have expressive content. In protecting these rights, US jurisprudence frequently relies on the image of the marketplace of ideas as furthering the search for truth. This commercial image, however, has increasingly detached expressive rights from the understanding of freedom of thought as a critical forum for individual autonomy. Indeed, the commercialisation of US free speech doctrine has drawn criticism for “weaponising” free speech to attack disfavoured economic and regulatory policies and thus potentially affecting freedom of thought adversely. The Internet complicates this picture. This paper argues that the Supreme Court’s expansion of the First Amendment for the benefit of commercial actors lies in the problematic tension with the justification for individual freedom of thought resting in personal self-direction and identity.

How Ontology Saved Free Speech in Cyberspace

1998 ◽  
pp. 64-69
Author(s):  
Julie Van Camp
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
United States Supreme Court ◽  
The United States ◽  
Physical World ◽  
The Internet ◽  
United States Supreme ◽  
The Supreme Court

Reno v. ACLU, the 1997 landmark decision by the United States Supreme Court providing sweeping protection to speech on the Internet, is usually discussed in terms of familiar First Amendment issues. Little noticed in the decision is the significance of the ontological assumptions of the justices in their first visit to cyberspace. I analyze the apparent awareness of the Supreme Court of ontological issues and problems with their approaches. I also argue that their current ontological assumptions have left open the door to future suppression of free speech as the technology progresses. Ontology is significant because zoning in the physical world has long been recognized as a way to segregate "adult" entertainment from minors. So far, at least, the justices seem to agree that such zoning is not possible in cyberspace, and therefore that adult zones for certain forms of expression are not possible. But this conclusion is far from settled. The degree of free speech on the Internet in the future will depend on whether or not our ontological understanding of cyberspace supports such zoning or renders it incoherent or impossible.

Where to limit the freedom of speech? Analysis in the context of the First Amendment to the US Constitution and the fighting words doctrine

2021 ◽  
Vol 37 (2) ◽  
pp. 239-256
Author(s):  
Karolina Palka
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
National Socialist ◽  
The Us ◽  
Us Constitution ◽  
Socialist Party Of America ◽  
The Right

This article is about the limits of the right to free speech. The first section provides a brief introduction to this topic, primarily in the context of the First Amendment to the U.S. Constitution. The second section describes the case of Chaplinsky v. New Hampshire, which was fundamental to the topic of this paper because the United States Supreme Court created the so-called "fighting words" doctrine based on it. In the next two sections, two court cases are presented that perfectly demonstrate the limits of the right to free speech in the United States: Snyder v. Phelps and Village of Skokie v. National Socialist Party of America. The fifth part shows the right to freedom of speech in the context of Polish civil, criminal, and constitutional law, as well as acts of international law binding on Poland. The last part is a short summary.

Parades, Picketing, and Demonstrations

2021 ◽  
pp. 368-388
Author(s):  
Timothy Zick
Keyword(s):  
United States ◽  
Collective Action ◽  
Civic Engagement ◽  
First Amendment ◽  
Freedom Of Speech ◽  
The United States ◽  
Collective Modes ◽  
Individual Autonomy ◽  
The Government

This chapter focuses on parades, pickets, and demonstrations, which are forms of civic engagement that communicate aspirations, ideas, and, quite often, dissenting opinions to fellow citizens, governments, and broader audiences. For many, gathering together in public, in these and similar forms, is a cathartic act of self-fulfilment and a demonstration of solidarity. Collective action in the form of public gatherings is an integral part of any system of communicative freedom. In the United States, in addition to the freedom of speech, rights to ‘peaceably assemble’ and to ‘petition the Government for a redress of grievances’ are explicitly provided for in the First Amendment to the Constitution. Ultimately, parades, pickets, and demonstrations all further basic expressive values relating to self-governance, the search for truth, and individual autonomy. Nevertheless, Americans seeking to engage in collective modes of expression face a variety of doctrinal, legal, social, and political challenges. The chapter then details how digital connectivity has facilitated expressive opportunities by connecting individuals and supporting new forms of associational activity.

Cyber Harassment and Free Speech

2019 ◽  
pp. 52-73
Author(s):  
James Weinstein
Keyword(s):  
United States ◽  
First Amendment ◽  
Private Information ◽  
United States Supreme Court ◽  
The United States ◽  
The Internet ◽  
Cyber Harassment ◽  
The World ◽  
Law Enforcement Officials ◽  
Rigorous Test

For most people the internet has been a dream come true, allowing instantaneous access to a vast array of information, opinion, and entertainment and facilitating communication with friends and family throughout the world. For others, however, the internet has wrought a nightmare, allowing often anonymous enemies a platform for vicious attacks on the character of their victims and a means for revealing to the world embarrassing private information about them. To combat these attacks, victims and law enforcement officials in the United States have employed both analogue remedies such as harassment and stalking laws as well as cyber-specific provisions. Since the attacks involve speech, however, all these remedies must comport with the First Amendment. The typical response of courts and commentators to the First Amendment issues raised in these cases is to ask whether the perpetrator’s speech falls within one of the limited and narrow traditional exceptions to First Amendment coverage, such as true threats, defamation, obscenity, or fighting words. This approach is understandable in light of unfortunate dicta in several United States Supreme Court decisions—that all content-based restrictions of speech other than speech falling within one of these exceptions are subject to “strict scrutiny,” a rigorous test that few speech restrictions can pass. This chapter argues that this approach to dealing with cyber harassment is misguided. This methodology often results in shoehorning the speech at issue into exceptions into which the speech does not fit, or worse yet, in a finding that the speech is protected by the First Amendment simply because it does not fall within a recognized exception.

School-Sponsored Speech

2015 ◽  
pp. 97-107
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
Speech Clause

This chapter examines the Hazelwood v. Kuhlmeier (1988) case – the United States Supreme Court's third review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for analyzing when schools can regulate students' speech. This test, referred to as the Hazelwood test (also known as the Kuhlmeier test) authorizes schools to censor school-sponsored student speech. The chapter discusses the Supreme Court's approach to student speech in the Hazelwood v. Kuhlmeier (1988) case. The ultimate goal of the chapter is to analyze the case in order to determine if it authorizes schools to censor students' speech while they are outside the schoolhouse gate.

Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

2015 ◽  
pp. 84-96
Keyword(s):  
United States ◽  
School District ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
Free Speech Rights ◽  
Speech Clause

This chapter focuses on the Bethel School District No. 403 v. Fraser (1986) case – the United States Supreme Court's second review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for determining when schools can regulate students' speech. This test, referred to as the Bethel test or the Fraser test authorizes schools to censor students' speech if the speech is vulgar, lewd, plainly offensive or obscene. The chapter also discusses the Supreme Court's decision on the scope of students' free speech rights. The ultimate goal of the chapter is to analyze the Bethel School District No. 403 v. Fraser case in order to determine if it empowers schools to censor off-campus student speech.

Remembering Lenny Bruce

2014 ◽  
Vol 30 (3) ◽  
pp. 214-217
Author(s):  
Charles Marowitz
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Fourth Amendment ◽  
Senior Citizen ◽  
The United States ◽  
United States Constitution

On 13 October 2012, Lenny Bruce, had he not accidentally overdosed on narcotics (or committed suicide – the jury is still out on that one), would be eighty-seven years old. It is, of course, a thoroughly incredible notion – like an octogenarian Mozart, a super annuated Janis Joplin, or James Dean signing up for a senior citizen pension. Poètes maudits, doomed rock icons, and self-destructive superstars are supposed to die young. Their myth demands it, and we wouldn't have it any other way.Bruce at forty-one, perched on a toilet bowl with a spike in his right arm and his last typed words (‘conspiracy to interfere with the Fourth Amendment const—’) in the barrel of his still humming electric typewriter, died characteristically. He was always associated with toilet humour and throughout the last decade of his life ex hausted himself trying to demonstrate that the United States Constitution protected the free speech for which one court after another mercilessly prosecuted him. (The Fourth Amendment, incidentally, protects citizens from ‘unreasonable searches and seizures’ and, along with the state's First Amendment violations, was as much responsible for his downfall as the cocaine and morphine.)

Free Speech in the Balance: An Examination of Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme for its Bearing on Conflict of Laws, Global Free Speech, and the International Regulation of the Internet

Global Jurist ◽  
2011 ◽  
Vol 11 (2) ◽  
Author(s):  
Andrew J. Ziaja
Keyword(s):  
United States ◽  
Free Speech ◽  
The United States ◽  
The Internet ◽  
International Regulation ◽  
Conflict Of Laws ◽  
Circuit Court ◽  
Court Of Appeals ◽  
Transnational Communication ◽  
Communication Calls

The global proliferation of the Internet, given the ease with which it permits transnational communication, calls into question the applicability of traditional territorial legal systems in governing its use. Conflict-of-laws instruments and the regulation of speech are two thorny areas of concern in this vein that interrelate in a 2006 case before the Ninth Circuit Court of Appeals in the United States, Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme. Yahoo! offers an entry point, through its bearing on conflict-of-laws and freedom of speech jurisprudence, into examining the appropriateness of traditional legal schemes to the task of regulating Internet-enabled conduct. Focusing on the substantive issues in Yahoo!, this paper takes up the adequacy of traditional conflict-of-laws instruments as regards Internet-enabled conduct, possible alternatives to the use of conflict-of-laws instruments to regulate Internet-enabled conduct, the applicability and weight of the French law against the First Amendment in a United States court, and, finally, the possibility of developing a common core of global values regarding speech on the Internet.

scholarly journals Congress Shall Make No Law: The First Amendment, Unprotected Expression, and the U.S. Supreme Court

AmeriQuests ◽  
2011 ◽  
Vol 8 (1) ◽  
Author(s):  
Charles Percy DeWitt
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
Research Associate ◽  
Daunting Task ◽  
The Supreme Court ◽  
History Of ◽  
The University

David M. O’Brien’s Congress Shall Make No Law: The First Amendment, Unprotected Expression, and the Supreme Court serves as a significant contribution to the field of First Amendment Law by offering an overview of crucial issues and, moreover, by emphasizing the outlook for the future of free speech. O’Brien’s credentials position him favorably for the task; he was a judicial fellow and research associate with the Supreme Court, he has written numerous articles and books on the Supreme Court, and he is currently the Leone Reaves and George W. Spicer Professor of Law at the University of Virginia. Considering the daunting task of compiling a succinct account and analysis of the history of free speech in the United States, Professor O’Brien does well to allow readers to better understand the complexities of free speech policy in the United States.

scholarly journals Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

2015 ◽  
Vol 15 (2) ◽  
pp. 197-223
Author(s):  
Mary Margaret Roark
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
New Era ◽  
The Public ◽  
Definition Of ◽  
The U.S

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach.

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