History and Philosophy

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Presentation transcript:

History and Philosophy Freedom of Speech and Freedom of the Press: History and Philosophy

The paradox of Freedom Public Safety v. Individual Rights “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty or safety.” Benjamin Franklin, Historical Review of Pennsylvania (1759)

John Milton Areopagitica 1664 “…who ever knew Truth put to the wors, in a free and open combat” 1608-1674

Two Treatises on Government 1690 1. Written constitution to define limits of government by those creating the new government 2. “Natural rights” are not all surrendered to the government John Locke 1632-1704

The trial of John Peter Zenger (1734) 1. Jury decides the case (nullification) 2. Truth is a defense in a libel case

The Constitution of the United States (1789) Article I, Section 8 “To establish Post Offices and Post roads.” “To promote the Progress of Science and the useful Arts, by securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Bill of Rights (ratified 1792) Amendment 1 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridgingthe freedom of speech, of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Bill of Rights (ratified 1792) Amendment 6 “In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed...”

Philosophies of Free Speech and Press I. Individual Fulfillment (Thomas Emerson) II. The attainment of truth: the marketplace of ideas (Oliver Wendell Holmes) III. Governance (Alexander Meiklejohn) IV. Watchdog (Vincent Blasi) V. Agent of Peaceful Change VI. Access (Jerome Barron)

Hierarchy of Protected Expression Political Speech (Meiklejohn) Advertising (since 1976) Indecent Speech (Seven Dirty Words) Obscenity,False Advertising, Fighting Words No protection QUESTION: HOW DOES ONE KNOW THE INTENT OF THE “FRAMERS?”

The nature of the guarantee Liberty v. Government power: Check on state actions under the 14th Amendment Expression v. Conduct Is entertainment afforded 1st Amendment protections? Symbolic Speech (expressive conduct) Texas v. Johnson (1989) R.A.V. v. City of St. Paul (1992)

Suspect Restrictions Prior Restraint Near v. Minnesota (1931) New York Times Co. v. U.S. (1971) Hazelwood School District v. Kuhlmeier (1988) Contract and Administrative Law (Marchetti and Snepp) Licensing Watchtower Bible and Tract Society of New York v. Village of Stratton (2002) Time, Place, and Manner Restrictions Content Neutral? Compelled Speech Media Access Laws: Tornillo v. Miami Herald Pub. Co. (1973) Punishment After The Fact Speech Codes Hate Speech: R.A.V. v. St. Paul (1992) Financial Burdens Taxes: Grosjean v. American Press Co. (1936)