Free Speech and Censorship

Buskers are street performers who are performing for money — they are not panhandlers. Unfortunately though, they are being treated as such. Cities and municipalities are effectively infringing upon buskers’ free speech and expression rights under the First Amendment by promulgating vague or inadequate regulations that ban conduct often intertwined with busking. For example, officers enforcing these regulations can validly lump a busker’s conduct into an anti-panhandling regulation. Therefore, an intricate balance must be struck in order to justifiably further the governmental interests at play and honor buskers’ guaranteed free speech and expression rights under the First Amendment.Cities and municipalities are doing the courts no favors in this busker dilemma. The regulations that are regularly implemented inevitably result in litigation. Then, the regulations force courts to define indefinable concepts: art and expression. To help alleviate the courts’ definitional crisis, cities and municipalities should promulgate regulations aimed directly at advancing the governmental interests that necessitated the regulation, as opposed to aiming regulations at particular types of conduct. This would be a much-needed solution for the courts, and would also properly strike the balance between government interests and buskers’ free speech rights. Throughout this Article, the case law directly impacting and shaping buskers’ free speech rights is thoroughly dissected. Then, the proposed solution to appropriately strike the balance between government interests and buskers’ free speech rights is elucidated. Last, the current case law and proposed solution are applied to the pending busker case of Young v. Sarles, to exemplify the problems of the current approach and illuminate the ease of the proposed “advancing the interest” approach to this busker dilemma.

A unique and definitive study of freedom-of-expression rights in electronic media from the 1920s through the mid-1930s, Louise M. Benjamin's Freedom of the Air and the Public Interest: First Amendment Rights in Broadcasting to 1935 examines the evolution of free speech rights in early radio. Drawing on primary resources from sixteen archives plus contemporary secondary sources, Benjamin analyzes interactions among the players involved and argues that First Amendment rights in radio evolved in the 1920s and 1930s through the interaction of many entities having social, political, or economic interests in radio. She shows how free speech and First Amendment rights were defined and perceived up to 1935. Focusing on the evolution of various electronic media rights, Benjamin looks at censorship, speakers' rights of access to the medium, broadcasters' rights to use radio as they desired, and listeners' rights to receive information via the airwaves. With many interested parties involved, conflict was inevitable, resulting in the establishment of industry policies and government legislation - particularly the Radio Act of 1927. Further debate led to the Communications Act of 1934, which has provided the regulatory framework for broadcasting for over sixty years. Controversies caused by new technology today continue to rage over virtually the same rights and issues that Benjamin addresses.

This annotated document collection surveys the history and evolution of laws and attitudes regarding free speech and censorship in the United States, with a special emphasis on contemporary events and controversies related to the First Amendment. The United States’ collective understanding of First Amendment freedoms was formed by more than 200 years of tensions between the power of word and the power of the government. During that time, major laws and legal decisions defined the circumstances and degree to which personal expression could be rightfully expressed—and rightfully limited. This struggle to define the parameters of free speech continues today. Vibrant and passionate debates about First Amendment limitations once inspired by the dissemination of birth control information now address such issues as kneeling during the national anthem, removing controversial books from public libraries, attempts by the Trump administration to discredit the press, and disseminating false or hateful information through social media platforms. By exploring diverse examples of censorship victories and triumphs of free expression, readers will better understand the enormous impact of First Amendment freedoms on American society.

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

Chapter 6 examines the relationship between the Free Speech Clause and reproductive rights, specifically the Due Process Clause-based right to obtain an abortion. It explores early intersections between free speech and abortion rights, and also examines the circumstances and effects of their later intersections. The chapter focuses in particular on the controversies surrounding protests and other speech activities at or near abortion clinics, which significantly affected abortion rights discourse in the United States. These interactions also influenced interpretations of both reproductive and free speech rights. The chapter critically assesses the manner in which free speech concerns have tended to crowd out concerns about reproductive rights, and suggests some ways in which we might the relationship between free speech and abortion rights.

If we assume that individuals have moral rights to free speech, and that privacy may restrict such expression, then there appears to be a conflict of rights-a conflict where speech or expression may trump privacy concerns. For example, when a musician offers up a song about a romantic affair for public consumption, privacy rights may run headlong into speech and expression rights. Andrew McClurg has noted that judges are not willing to protect privacy if doing so threatens free speech: Of the forty- nine invasion of privacy cases reported by state courts in 1992, trial courts granted summary judgment to the defendant in twenty- one of the cases and granted the defendant's motion to dismiss the complaint in fifteen of the cases. other words, in thirty- six of the forty- nine cases (73 percent) trial judges deprived plaintiffs the opportunity to have their privacy claims heard by a jury.2 McClurg also mentions that the situation is nearly identical in the federal courts.3On the other hand, privacy and free expression may be mutually reinforcing. Anonymous communication, online or otherwise, allows individuals to express themselves freely without fear of censure. Citing precedents dating back to the 1950s, Nadine Strossen, former president of the American Civil Liberties Union, writes, In all these cases, the Court has recognized that without the cloak of anonymity, many individuals simply will not exercise their First Amendment rights. They will not freely associate with controversial organizations, nor will they express controversial ideas or discuss sensitive subjects.4 Privacy also reinforces free speech by supporting access to information. When Virginia mandated blocking software to deny access to pornographic materials online and required permission and public disclosure to turn offthe blocking software, free speech was threatened. Professors and researchers across numerous disciplines were loath to disclose the subject matter of their studies-especially when such disclosures would occur piecemeal and unaccompanied by the final written document.5While privacy may strengthen speech or expression in some instances, it seems that in most cases there is conflict. Do we have a right to know the names of rape victims or the sexual preferences of citizens who act heroically? Are the daily events of politicians or entertainers newsworthy? Is privacy less important than freedom of speech? My answer is no to each of these questions. this article I will argue that upon careful analysis there is little conflict between privacy and expression in the moral realm. Moreover, if legal systems are to reflect, promote, or protect basic rights, then it is not so clear that speech should nearly always trump privacy. The ascendancy of speech protection in the legal realm, I argue, is due to an expansive and unjustified view of the value or primacy of free expression-this is perhaps understandable, given that privacy has been understood as a mere interest, whereas speech rights have been seen as more fundamental. I have argued elsewhere that this view of privacy is false-privacy, properly defined, is a necessary condition for human well- being or flourishing.6 Part I will provide an overview of the moral foundations of privacy-while brief, the goal is to establish the claim that privacy is more than a mere interest. Part II will consider several arguments-or strands of argument-purporting to justify free speech rights. While these arguments, taken together, establish that free speech is important, they do not support the view that speech should nearly always trump privacy. Part III, I will suggest a way to balance free speech and privacy claims in the law.Part I: Establishing a Moral Presumption in Favor of PrivacyI favor what has been called a based definition of privacy. Privacy is the right to control access to, and uses of, personal information and spatial locations 7 Privacy may be understood as a right to control both tokens and types. …

This article explores the impact on students when non–university-affiliated conservative fundamentalist Christian groups conduct provocative demonstrations on campus. As university administrators work to balance free speech rights with missions of civility and pluralism, there is a need to assess and address potential adverse impacts of these sensational events. Based on a survey of 97 public university students after a controversial demonstration, we found the most adverse impact to be on students’ emotions, followed by disruption to their routines, changes to their feelings of safety, and minor consequences on academic activities. Those closer in proximity to the demonstration reported more adverse effects, and there were small differences in effects as a function of student gender, sexual orientation, and Christian identity. Counter to the ostensibly conservative aims of the demonstration, students typically reported it had little affect on their attitudes or that the demonstration made them more in favor of abortion rights, more supportive of homosexuality, and more anti-Christian. In addition, the demonstration caused many to question free speech and First Amendment rights. Results are discussed with regard to minimizing negative effects on our campus communities through the intentional involvement of faculty, campus police, and mental health service providers.

‘Moderate Islam’

This dissertation explores the tension between the U.S. government’s control of information and government employees’ claims to free speech rights. The U.S. government prepublication review is a censorship system that requires former and current federal government employees to submit any materials intended for publication to their agencies for prior review before they attempt to make any external communication or proceed with any publications. The prepublication review regime has become an essential means by which the U.S. government controls internal information, and has long been controversial because of its censorship nature. Specifically, this dissertation focuses on legal disputes between the U.S. government prepublication review regime and government employees’ First Amendment rights. Because Snepp v. U.S.(1980) is the only prepublication review case the U.S. Supreme Court has ever decided and the Court has never revisited it, lower federal courts have been responsible for shaping federal government employees’ First Amendment rights in the context of prepublication review over the last forty years. Accordingly, the dissertation examines all judicial opinions involving government prepublication review and the First Amendment, issued by federal courts from 1980s (post-Snepp) to the present, and analyzes how lower federal courts, following the sole Supreme Court case, deal with the conflict between the federal censorship regime based on national security interests and government employees’ free speech rights. The dissertation found that lower federal courts can strike a relatively fair balance between the competing interests of both parties, and they will continue to employ their balancing approaches to resolve future prepublication review legal disputes. However, the courts fail to fairly recognize First Amendment values contributed by government employee speech. They stick to a conventional deference to the executive branch when it comes to national security matters.

Reviewed by: HATE: Why We Should Resist it with Free Speech, Not Censorship by Nadine Strossen Richard Ashby Wilson (bio) Nadine Strossen, HATE: Why We Should Resist it with Free Speech, Not Censorship (Oxford University Press 2018), ISBN: 9780190859121, 232 pages. Hate is trending. The sitting president of the United States regularly mobilizes his political constituency by vilifying Mexican immigrants as “criminals and rapists” who “infest” America, and by promoting a “zero tolerance” policy at the border that punitively separates children from their parents, including persons applying for asylum. There has been a resurgence in white nationalist ideology globally both in mainstream electoral politics and in ugly scenes on the streets of Charlottesville, Dresden, and Warsaw. In the United Kingdom, hate crimes spiked after the Brexit referendum and in the USA, there has been a steady rise in hate crimes against African-Americans, Muslims, immigrants and members of the LGBT community. Given this current paroxysm of populism, isn’t it high time we re-evaluated our commitment to freedom of expression and start contemplating new legislation to regulate discriminatory speech that targets vulnerable minorities? In HATE: Why We Should Resist it with Free Speech, Not Censorship, Nadine Strossen, former national President of the American Civil Liberties Union (ACLU), offers a resounding defense of free speech and rejects attempts to suppress or ban speech that is constitutionally protected under the First Amendment. Free speech is the lifeblood of democratic deliberation, argues Strossen, and much hate speech in the United States, while offensive, is protected speech and should remain so. Current US law only suppresses speech that intentionally advocates imminent lawless action that is likely to occur, and even then, the regulation of speech must occur in a way that is consistent with the viewpoint (or content) neutrality principle which inhibits the state from disfavoring some opinions simply because they are disagreeable. Strossen starts with the observation that there is no clear and consistent definition of “hate speech,” which she puts in scare quotations throughout the book. Hate speech is not a term of legal art and it is simply wrong to assert, as some liberal politicians have, that “hate speech is not free speech.” In Strossen’s view, “the terms ‘hate speech’ and ‘hate crimes’ are simply deployed to demonize views people find offensive and to call for punishing a broad swathe of expression, including political discourse that is integral to our democracy.”1 Reviewing hate speech laws in the US and globally, Strossen concludes that it is simply not possible to draft hate speech laws that are not unduly vague, overbroad and counter-productive.2 Germany, France, and other European countries convict hundreds of defendants a year for offences as capacious as “incitement to hatred,” and Strossen documents a number of cases that seem disproportionately chilling of political [End Page 213] speech. They include the 2014 arrest of a British politician for publicly reading a Winston Churchill quote from 1899 that denounced the treatment of women in Muslim countries, and the conviction of a Danish man in 2016 who criticized “the ideology of Islam” on Facebook, and posted the statement, “Islam wants to abuse democracy in order to get rid of democracy.”3 She reminds us also of the long and repressive history of government censorship in the United States, including how, in the 1830s, Southern states banned abolitionist speech on the grounds that it had the potential to incite violence and rebellion. She observes that the Republican National Committee and some state legislatures have included the Black Lives Matter movement in resolutions condemning hate speech. HATE addresses the lively and fairly acrimonious campus hate speech debate currently taking place in the United States, and Strossen counsels faculty and students to confront provocative speakers at universities with “counterspeech” and vigorous opposing arguments, rather than to silence them with heckling and censorious campus hate speech codes.4 She points out that all the campus speech codes challenged in the courts by the ACLU have been struck down on First Amendment grounds and recommends that universities permit all speech that the government does not itself censor.5 Strossen does not countenance the view that merely being exposed to denigrating speech is in...

law of public employment has come long way since 1892. That's when Oliver Wendell Holmes made his infamous statement, The petitioner may have constitutional right to talk politics, but he has no constitutional right to be policeman. (1) Back then, public employment was seen as privilege, not right. Today, it's clear that public employee does not shed his constitutional rights at the workplace door. While public employees have more rights than they did in the 19th century, their legal protections have been decreasing in the past two decades. Public employees' constitutional rights reached peak during the 1960s and 1970s. Since then, the Supreme Court has been diluting their rights. Some of the most significant court decisions shaping the employment environment for public school teachers have come in the areas of freedom of expression, procedural due process, and search and seizure. FREEDOM OF EXPRESSION landmark case in terms of setting constitutional standards for teacher employment came in 1968 in Pickering v. Board of Education, in which the Supreme Court ruled that a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. (2) In Pickering, the Court ruled that public employer had to show compelling state before firing teacher for speaking about matters of public concern. In such case, the court must balance the rights of the employee against the public employer's right to run an efficient workplace. Pickering represents the closest that the free speech rights of teachers approached those of the general public. In 1983, the Supreme Court clarified public employees' free speech rights in Connick v. Myers. (3) Court ruled that when public employee speaks out on matter of private or personal interest and not as citizen on matters of public concern, the speech is not protected by the First When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. In the school setting, courts assess whether teacher's speech is made mostly in the teacher's role as citizen or as an employee of the school. (4) But even teacher whose speech is matter of public concern can be disciplined if such speech disrupts the school environment. In 2006, the Supreme Court ruled in Garcetti that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (5) Some scholars have argued that this new employer-friendly rule constitutes sharp break from the traditional Pickering test and discourages public employees from speaking out. Subsequent cases involving teachers illustrate how the Garcetti ruling is weakening the First Amendment rights of teachers both inside and outside the classroom. In Michigan case, the court upheld the termination of teacher who wore t-shirt complaining of lack of contract. Citing Garcetti, the court simply ruled that the t-shirt caused disharmony in the workplace. (6) Similarly, the Seventh Circuit ruled in 2007 that an Indiana teacher who was dismissed for sharing her views against the war in Iraq in class discussing current events was unprotected by the First (7) In 2008, school psychologist sued her school district, alleging that the district retaliated against her after she spoke about noncompliance with the Individuals with Disabilities Education Act (IDEA). A federal district court ruled that she was speaking as an employee rather than as citizen. Citing Garcetti, the court concluded, Plaintiff has not alleged that she was speaking as citizen when she voiced her concerns about alleged IDEA violations. …

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity — ranging from core free speech protection to almost no protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for attorneys, especially when acting in a representative capacity. The access-to-justice theory of the First Amendment provides a workable methodology specific to examining the constitutionality of restrictions on attorney speech. Grounded in established free speech theories and philosophy, the access-to-justice theory ties attorney speech rights to the proper and constitutional functioning of the justice system. Rather than viewing attorney pretrial publicity as a compromise between incompatible rights to a fair trial and lawyer free speech, the lawyer’s speech right is keyed to the lawyer’s role in the justice system. Such an approach does not eliminate the free speech side of the traditional compromise. In fact, restricting certain pretrial publicity can frustrate the attorney’s role to protect a client’s life, liberty, and property. Thus the appropriate scope of free speech protection for attorney pretrial publicity is determined by examining the respective roles of the prosecutor and defense attorney in the criminal justice system and the effects of pretrial publicity by each on the proper workings of that system. Such an analysis demonstrates that the traditional compromise, as embraced in MRPC 3.6, violates the robust free speech rights of the defense attorney to protect her client’s reputation and rights to a fair trial, a just plea, and a presumption of innocence. The compromise also improperly creates false constitutional walls that have kept states from curbing their own representative, the prosecutor, from prejudicing the state’s criminal processes. The prosecutor maintains essential, but limited, First Amendment rights to engage in speech necessary for the investigation and prosecution of crime and to respond to defense-initiated publicity. Notably, the failings of the compromise work to one end: undermining the rights and constitutional processes necessary to protect the guilty and the innocent in the face of state power to forfeit life or liberty.

The question of broad federal constitutional free speech rights for undocumented speakers is generally unexplored in the case law and the law review literature. This Article sketches a case for such rights based on a relatively uncontroversial argument. Briefly, free speech rights generally are inherently relational. They may be enforced either by potentially willing speakers or by potentially willing listeners. As a practical matter, there are a number of current citizen-voters who, for the sake of more fully informing themselves on a broad range of cultural, economic, legal, and political issues, would prefer to hear from the broadest possible range of relevant sources. Such sources would presumably include a broad range of physically present undocumented persons with diverse experiences. As a general matter, punishing or preventing the speech of undocumented persons, where they would otherwise be willing to speak, invokes the clearly established free speech rights of the willing potential listeners among citizen-voters. The willing undocumented speakers in such cases thus wind up with what we might call pragmatic or de facto free speech rights, subject to appropriate regulation. A number of points of clarification and alternative analyses are then addressed.

Higher education has long been the fundamental building block upon which American democracy is based. The guarantees of free speech have served as the catalyst for higher education, itself a revered liberty in the American polity. As the Supreme Court famously declared in 1969: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Indeed, freedom of expression is imperative to a university’s mission in preparing young aspiring students to become informed and engaged citizens. This paper examines the decision by the Eighth Circuit Court of Appeals in Gerlich v. Leath and elaborates on the complexities that arise when analyzing student speech rights that conflict with university interests. Specifically, this paper reviews the Eighth Circuit's over-simplification of the rights and interests at stake in the original opinion and more thoroughly scrutinize the intricacies of student speech rights on university campuses. The Gerlich decision ultimately misses the analytical mark because it fails to fully evaluate the Free Speech rights at stake will. Insufficient attention is paid to the nuanced tensions that exist when examining First Amendment rights in the setting of a higher education institution—namely, that such circumstances present unique instances of “mixed speech” where both the university and its students are expressing a message particular to their own interests. Though student speech rights do not end at the schoolhouse gates, exactly how far they extend into the daily operations of a public university it remains to be seen. The Gerlich decision would suggest that they are fairly invasive, and growing. But there is good reason to question the strength of the Gerlich opinion. The relevant question is not whether student speech rights should be curtailed on university campuses; the relevant question, rather, is to what extent student speech rights should prevail when they content with—even conflict with—the expressive interests of their university.

With the current outrage at the arbitrary method of censorship applied by the board of film certification in India, it was pertinent to understand and take a closer look at the methods and principles which guide the method of censorship in India, this is also an attempt to understand why censorship is a vital tool to ensure peace and unity in India. The paper also looks at the past and present of censorship, in the form of how it came to be, why it came to be and also what role it plays in society today. In order to get a bigger picture of censorship an attempt has been made to understand censorship in the United States of America, which is a champion of democracy and also in the People’s Republic of China which uses censorship to shepherd its populace in the other direction. The effects both schools have on censorship have been explored in this paper. India being a mixture of both influences has the right to expression subject to certain instances and therefore must understand that even though the right of free speech is indeed a requirement in these times and places, but why censorship as a necessary evil as well in India.