Study Guide for Test 2

Text chapters 2,3,13.

All class notes

Know the main points and various sides of arguments for the articles on the web page. Note that in some cases (slavery ad and coverage of war), there may be several articles on each topic.

The First Amendment and Freedom of Expression

Goals for Studying First Amendment

• understand rationale for constitutional protection of freedom of speech
• understand the logic of the law
• understand specific applications of the law to various situations

The First Amendment

What does it say? What does it cover? What doesn't it cover? How is it different in the rest of the world?

The First Amendment Historically

• seditious libel laws - what are they?
• prior restraint - what is it? Know Near v. Minnesota. Know the Pentagon Papers case.
• licensing laws
• bonds
• government control

Legal Theories of First Amendment

• Absolutist
• Ad hoc balancing
• Preferred position balancing
• Meiklejohnian
• Access

When is Prior Restraint Allowed Today?

• national security -
• fighting words - what are the laws regarding hate speech?
• high school students - what are the different viewpoints on this issue. Know Tinker v Des Moines and Hazelwood SD v Kuhlmeier. What criteria are used to censor?
• time, place, and manner restrictions - what are the 4 criteria? Differences between public and private locations.

Book Banning - what are the differing viewpoints? When and how can books be censored?

Prior Restraint During Wartime

- how has war coverage changed after Vietnam? Why? What are the arguments on both sides? What kind of restrictions are placed today on coverage?

Guidelines for Time, Place, and Manner Restrictions

• content neutral
• alternative means of expression available
• narrowly drawn
• compelling reason for doing so

Commercial Speech Protection

• Valentine vs. Chrestensen
• Bigelow vs. VA.
• VA. State Board of Pharmacy vs. VA. Citizens Consumer Council
• Central Hudson Gas & Electric vs. Public Service Commission

Test for Protection of Commercial Speech

• speech protected by First Amendment
• substantial government interest
• regulations advance government interest
• narrowly drawn

Traditional Mass Media and First Amendment Protection

• Printed press - newspapers, magazines, books, pamphlets
• Telephone
• Cable TV
• Over-the-air broadcast radio and TV

Criteria for Distinguishing First Amendment Protection by Media

• Capacity of medium to carry messages
1. limited or unlimited
• Traditional relationship between government and media
1. regulated or unregulated
• Pervasiveness/invasiveness of media
1. active vs. passive receiver
• Accessibility of the medium
1. especially to children

First Amendment Protection and the Internet

S.Ct. rules in Reno vs. ACLU (1997) that Internet should receive highest level of protection like print media

• no scarcity of channels
• no history of government regulation
• not invasive like R/TV (warnings)
• shielding of children not critical for Internet to grow

Section IV

Obscenity

WHAT DO WE MEAN BY OBSCENITY? What is the legal definition? What are the problems in enforcing regulation? How is it different from other First Amendment issues?

Early Obscenity Laws

• Comstock Act
• Hicklin Rule
• Ulysses Decision

Roth vs. U.S. (1957)

• Dominant theme of the material taken as a whole must appeal to prurient interest in sex.
• Material is patently offensive because it affronts contemporary community standards related to sexual materials.
• Material is utterly without redeeming social value.

Miller vs. CA. (1973)

• Average person, applying contemporary local community standards, finds that the work taken as a whole appeals to prurient interests.
• The work depicts in a patently offensive way sexual conduct specifically defined by state law.
• The work lacks serious literary, artistic, political, or scientific value. (SLAPS)

Variable Obscenity - material legally sold and available to adults may be banned as obscene for distribution or sales to those under 18.

Child pornography laws

Regulation of Non-Obscene (Indecent) Material

• film (and video store) censorship and ratings
• zoning laws and adult businesses - three part test
• record lyrics
• television and indecency - FCC vs. Pacifica (1978)
• computers/Internet - Comm. Decency Act of 1996

The Communications Decency Act

…using an interactive computer service to display in a manner available to a person under 18 years of age any comment, request, suggestion, proposal, image, or other communication that, in any way, depicts or describes, in terms patently offensive as measured by contemporary standards, sexual or excretory activities or organs.

Other Shielding Methods

• Filters
• Self-ratings
• Passwords/ID’s

return to CM 420 Page
return to Courses Page
return to Home Page