1. What is the most important part of what the First Amendment says, for the pur- poses of this class? 2. What are the ba- sic origins of why American
... [Show More] founders wrote the First Amend- ment the way they did and who did they try to put in charge of deciding what words and ideas would be ex- pressed? 3. How have the courts not inter- preted the First Amendment in literal terms of what the words actually say? 4. The five main theories on why free speech should be pro- tected and which the Supreme Court has cited the most often in 3rd and 4th parts: Freedom of speech and of the press. Americans had experienced English censorship and con- trol of expression: 1) All printing required government licensing during the years 1538-1694 2) Star Chamber imposed harsh penalties 3) 1712 Stamp Act imposed taxes on newspapers, pam- phlets, and advertising 4) Criticism of the government punished as sedition. For someone reading the words of the First Amendment for the first time, it would be understandable to think it means the government can make no law abridging the freedom of speech. However, even though some Supreme Court justices and legal scholars have held that view (absolutist interpretation) over the years, a majority do not. In short, the phrase "no law" has not been interpreted literally by the courts. 1) Political self-governance - theory that only through pro- tected access to all information can citizens self-govern. 2) Check on political power - theory that protecting news media counter-balances the power of government. 3) Political exchange with stability - theory that protecting peaceful expression of grievances reduces political vio- lence. 4) Individual fulfillment - theory that pursuit of life, liberty, the reasoning for its First Amend- ment rulings 5. The five so- cial interests be- hind why some speech is not protected 6. What is the First Amendment? 7. What have the Supreme Court and Congress established as to what "no law" means in the First Amend- ment? 8. Laws can be jus- tified as... 9. For what reasons is expression re- stricted by law? and happiness requires protection of individual expres- sion. 5) Marketplace of ideas - theory that protecting all ideas to compete freely best allows truth to emerge ultimately. - one Supreme Court has cited most often in rulings. National security, individual reputation (libel, slander) as defamatory, orderly streets (some expression interferes with traffic, safety), honest commercial markets (selling products and services may be regulated to protect con- sumers and the fair bargaining process), intellectual prop- erty (using copyrighted/trademarked material without per- mission. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Some laws in practice. Protecting the greater freedom of speech or as balancing it in relation to other constitutional interests. As a result, much expression is protected by the First Amendment from government restriction but some may be punished - a huge factor in structuring society and resolving conflicts between interests. National security, individual reputation (libel, slander) as defamatory, orderly streets (some expression interferes with traffic, safety), honest commercial markets (selling products and services may be regulated to protect con- 10. Why is the "How to Teach your Brain" article's advice for peo- ple after college about the right way to learn may be more valuable during college? 11. What is "massed learning" and specifically what are its limita- tions regarding different types of learning? 12. What is the "spacing effect" and how specifi- cally why it rep- resents a much more valuable practice of re- garding learning that lasts? 13. What did Jus- tice Holmes say about "fighting faiths" and what we may come to believe about what the best truth is? sumers and the fair bargaining process), intellectual prop- erty (using copyrighted/trademarked material without per- mission. The article advises college-age students to study in short 30 minute bursts days leading up to a presentation, test, quiz, etc. The brain does not like to cram. The brain will absorb information much better when exposed to it in short bursts. This will lead to better professional practices. "Massed learning" is cramming. It only leads to short-term learning. Important information won't stick through cram- ming. The "spacing effect" was observed by Hermann Ebbing- haus in 1885. It gives the brain extra learning for less by spacing out the absorption of information. During spaced learning, the brain continues to rehearse prior information. "When men have realized that time has upset many fight- ing faiths, they may come to believe... that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the through to get itself accepted in the competition of the market..." 14. What did justice Holmes say that we have to do in order to protect the marketplace of ideas when it comes to First Amendment pro- tections? 15. What are the as- sertions and evi- dence of the au- thor of the In- ternet Loosening Grip article's that the Internet is distorting soci- ety's sense of truth and under- mining democra- cy? 16. What do scien- tists say people tend to do with diverse informa- tion choices? 17. What does re- search indicate "....That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment... While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe... unless they so imminently threaten immediate interference with the lawful and press- ing purposes of the law that an immediate check is re- quired to save the country." Oliver Wendell Holmes, 1919, Abrams vs. US For years, technologists and other utopians have argued that online news would be a boon to democracy. That has not been the case. Psychologists and other social scientists have repeated- ly shown that when confronted with diverse information choices, people rarely act like rational, civic-minded au- tomatons. Instead, we are roiled by preconceptions and biases, and we usually do what feels easiest — we gorge on information that confirms our ideas, and we shun what does not.the internet would usher in a "post-fact" age. Eight years later, in the death throes of an election that features a candidate who once led the campaign to lie about President Obama's birth, there is more reason to despair about truth in the online age. Why? Because if you study the dynamics of how information moves online today, pretty much everything conspires against truth. We all tend to filter documentary evidence through our own biases. Researchers have shown that two people with about peoples' tendency to filter documentary ev- idence through our own biases? 18. What does the fragile, reluctant- ly entered truce that the Treaty of Westphalia rep- resent? 19. What right is can be traced back to the Treaty of Westphalia? 20. What were two points highlight- ed about why we should revisit this history in the "Does Our Soci- ety Still Support the Right to be Wrong?" article? 21. What did Oliver Cromwell come to recognize? differing points of view can look at the same picture, video or document and come away with strikingly different ideas about what it shows. In the "modern" era, its status as one of the defining ideas of Western civilization can be traced to the Treaty of Westphalia in 1648. After a century of bloody religious wars between Catholics and Protestants -- with Jews often getting caught in the crossfire -- the exhausted rulers of Europe reluctantly agreed to a fragile truce. While every nation would still officially follow the faith of the ruler, it was understood that religious minorities would be afforded some tolerance. Persecuting religious dissenters in one nation might reignite war, as rulers of other countries would feel obliged to defend their coreligionists abroad. (To see how that dynamic works today, just look at how Sunni and Shia governments in the Middle East send aid or troops to defend their brethren in neighboring lands.) Freedom of religion First, to underscore how culture wars are nothing new in the West, and as bad as ours are today, they could get much, much worse. Second, to illustrate a point lost on culture warriors of the left and the right. Pluralism and tolerance are not simply nice ideals, like good manners. They are what management gurus call "best practices," learned after millennia of gory trial and error. Cromwell recognized that he had to compromise with re- ality if he was going to end the religious conflicts plaguing his country. 22. What did Thomas Jefferson do that became the foun- dation for the First Amend- ment? 23. What was the connection be- tween religious conflicts and val- ues, rituals, cus- toms and ideas according to the "Does Our Soci- ety Still Support the Right to be Wrong?" 24. Why does the au- thor of the "Right to be Wrong" ar- ticle argue that we could be on a path to the logi- cal destination of "putting beliefs of the mind to the judgment of the sword." ? 25. What are the different means through which U.S. law sorts out which ex- pression is pro- tected by the First Amendment Thomas Jefferson had strong views on religion, but his Virginia Statute for Religious Freedom disestablished the Church of England and established religious liberty for Christians, Muslims, Jews, Hindus, even pagans. The statute became the foundation for the First Amendment. The religious conflicts of the past were ultimately about which values, rituals, customs, and ideas should be im- posed on everybody. Traditional religion may be receding in many parts of American culture, but politics is taking on a decidedly religious flavor -- and religion is becoming increasingly politicized. People are growing intolerant of any dissent from their idea of what everyone should believe. Agree with me and you're one of the good guys; disagree with me and you're not just wrong, you're my enemy, a heretic, a traitor, a bigot. Opportunists recognize that exacerbating this polarization redounds to their own benefit because at least for now, do- ing so helps raise money, ratings, clicks and poll numbers. We are a long way off from putting beliefs of the mind to the judgment of the sword, but that is the logical destination of the path we are on because we have lost faith in the utility of upholding the right to be wrong. The Hierarchy of Protection: One of the most important legal methods for determining which expression is protected or punishable. 1. Political/social expression - Highest level of FA protec- tion. 2. Expression such as truthful advertising and nonob- scene sexual expression - intermediate level. and which can be punished? 26. What does the important stan- dard established in Brandenburg v. Ohio (1969) protect AND how does it do that? 27. Why has the Supreme Court protected flag burning in cas- es like Texas v. Johnson (1989)? 28. What is the con- tent-neutral test is and how does it work? 29. What hap- pened in the first student First Amend- ment case, Tin- 3. Expression such as false advertising, fraud, obscenity and fighting words - receives no protection from the FA. It protects speech advocating illegalities. It sets the in- citement standard. An expression must be found inciting imminent lawless action and must be likely to produce such an action. Brandenburg: message that advocated overthrowing the government but not in an imminently threatening way. Words must be immediately and likely to cause lawless action. U.S. Supreme Court ruled the law regulated content be- cause it was aimed at restricting expression for the reason that it was offensive to many people. -The Court held that the government cannot approve or disapprove of any specific viewpoint simply because soci- ety finds the idea offensive. -Why? Such a precedent would be overly broad and vague with no discernible or defensible boundaries. This could punish all sorts of expression. Content-neutral test is the flip side of content regulation. This type of regulation is considered neutral on content because it is held not to regulate the ideas the message contains or communicates. Content-neutral regulations fo- cus on the time, place, and manner of the expression and is thus more likely to be held constitutional than are content-based regulations. The test: -Does the regulation have a substantial (not compelling) government interest (safety, traffic flow, efficiency of gov- ernment service, beauty of community, etc.) Is that interest unrelated to the supression of free expres- sion? Tinker v. Des Moines (1969) - First student First Amendment Case - Students were suspended for wearing black armbands to school to protest the Vietnam War - Since it was not disruptive, Court ruled the suspension ker v. Des Moines of these students was unconstitutional and in impor- tant student First Amendment cas- es since then - and what is the overall trend of that group of cas- es? 30. How do First Amendment pro- tections apply in public forums and what is a great example of a public forum at OU? 31. How do you explain pri- or restraint and contrast it with post-pub- lication punish- ment? - Court said expression by high school students is protect- ed 'in the absence of a specific showing of Constitution- ality valid reasons' (such as being disruptive, obscene or violating the rights of other students) -However, since then, the trend has been to reduce First Amendment protection for students -Public forums - Expression generally cannot be restrict- ed in traditional (streets, parks) and dedicated (meeting rooms) public forums South Oval at OU is a public forum -Nonpublic forums - Expression may be restricted in non- public forums (military bases, airports, shopping malls) Prior restraint - legal term for an official restriction of speech before it is disseminated. The government is great- ly limited on deciding in advance which speech should be punished - Courts have held U.S. First Amendment law begins with the presumption prior restraint of content by government is unconstitutional -But some types of prior restraint have been upheld as constitutional Post publication measures - punishment/restrictions im- posed after expression is disseminated. Relatively much more likely to be legal in the US than prior restraints - This type of punishment of expression is much more common and likely to be considered constitutional under First Amendment law - Examples: laws that punish libel, invasion of privacy, copyright infringement, obscenity, deceptive advertising, etc. 32. What was the major way that Citizens United v. FEC changed Citizens United v. FEC found that corporations could spend money to influence elections, just like human be- ings. Corporations were not considered human entities capable of expression. The move to make a corporation First Amendment able to have constitutional expression began in First Na- law in 2010 and what it means corporate man- agers may now do? 33. What did the majority in Citi- zens United rule there is no dif- ference between (in terms of tional Bank of Boston v. Bellotti (1978) which involved the spending of corporate money on referenda, not elections. The majority in Citizens United ruled that there is no dif- ference between the spending of stockholders' profits by corporate managers and the political speech of individual human beings. All precedents upholding the great body of related federal and state regulations developed over many decades on corporate media spending in candidate First Amendment elections. law)? 34. Unprotected ex- pression 35. Intermediate pro- tection of expres- sion - Lowest ranking in hierarchy - False ad, fraud, etc. - Obscenity (most graphic form of porn) may be banned in all media in US - Fighting words - those that don't merely offend but also invoke violence. - Supreme court almost always strikes down as unconsti- tutional regulations found to be aimed more at offensive expression rather than specifically at preventing violence. -Some categories of speech have been given an inter- mediate or partial level of protection, placing them in the middle of the Hierarchy of Protection. - Some regulation on commercial advertising, for example, is considered constitutional in order to protect consumers and preserve the fair-bargaining process. - Another example of this level is nonobscene sexual ex- pression (such as nude dancing) which can be restricted by law but not banned completely 36. Highest level of protection 37. Protecting Con- tent 38. How can a regulation be found uncon- stitutional by courts when the strict scrutiny standard is ap- plied? 39. What was a ma- jor content-neu- tral ruling? Political/social expression - forms of expression widely considered to represent the most important purpose of the First Amendment. - Thus, expression deemed to fall in this category is essen- tially completely protected from punishment or restriction by the government. - Can be expressed in many ways - online, in print media, through poetry, on posters, in speeches and lectures, in films, in broadcasts, symbolically, by marches, political spending, etc. -This is another of the most important legal methods for determining which expression is protected or punishable under the First Amendment. -When an expression is protected, courts make it as diffi- cult as possible for the government to regulate its content - the ideas the message contains/communicates Courts do that particularly by applying the test of strict scrutiny to regulations that have been challenged as un- constitutionally restrict content -To pass that test, such regulations must be shown to have a compelling government interest and to be narrowly tailored to impose a minimum restriction. -Not having compelling government interest - Vagueness - which means that a law is not written clearly enough for persons of common intelligence to agree on what it means -Overbreadth - which means in this context that a law restricts substantially more expression than necessary to advance its interests. United States v. O'Brien (1968) -Federal law that punished anyone who destroyed or mu- tilated draft cards was challenged by plaintiffs who had burned cards as expresssion of protest against war. -Supreme Court ruled the law did not punish the content of the expression and that was a content-neutral expression 40. Which cases have reduced -Court found the law was not aimed at suppressing ex- pression but at substantial government interest- raising arms quickly. - Hazlewood v. Kuhlmeier (1988) - Court said censorship of school-sponsored publication at a high school is consti- First Amendment tutional as long as it is "reasonably related to pedagogical rights for stu- dents? 41. What are forms of prior re- straint? 42. What are the arguments on the question of whether shield- ing college stu- dents from unfa- miliar ideas will undermine learn- ing to see the world as other people see it and concerns." - Hosty v. Carter (2006) - Court let stand lower court ruling that applied Hazlewood to college students - Morse v. Frederick (2007) - Supreme Court rule high school students can be punished for the content of expres- sion if it appears to promote illegal drug use - in this case, a student was punished for a banner reading "Bong Hits 4 Jesus" at a city parade where students were present Injunction - a court order that stops or prevents a partic- ular action, such as expression. Often used in US to halt unprotected speech - obscenity, false advertisement, and fraud Licensing - requiring permission for expression - Uncon- stitutional when officials may abuse discretion Discriminatory taxation - taxing forms of expression, con- stitutional only when general, no based on content Prepublication agreements - contracts between govern- ment and employees that limit expression, constitutional in many cases as a condition of employment .People ought to go to college to sharpen their wits and broaden their field of vision. Shield them from unfamiliar ideas, and they'll never learn the discipline of seeing the world as other people see it. They'll be unprepared for the social and intellectual headwinds that will hit them as soon as they step off the campuses whose climates they have so carefully controlled. What will they do when they hear opinions they've learned to shrink from? If they want to change the world, how will they learn to persuade people to join them? developing skills to persuade oth- ers to consider their ideas? 43. Can a truly free .It's a fine line. The marketplace of ideas expresses the marketplace of notion that unpopular speech will not become accepted. ideas and "safe However, in light of people dealing with trauma, it is nec- space" culture essary to understand that words can be triggering. that provides shelter from un- welcome view- points co-exist? 44. Considering the According to the "Political Correctness" article, arguments on free-speech organizations are a big threat because they whether the big- claim to promote the protection and preservation of free ger threat to speech, but in actuality are ways that conservative individ- the marketplace uals are hurting the marketplace of ideas. Conservatives of ideas, is used to remind us that what the Constitution protects in "political correct- speech, civil society modulates; freedom requires self-re- ness" or fake straint and respect for others, not the hurling of scare free-speech or- words. Yet now their selectively legalistic "free speech" ganizations a strategy helps turn collegial contentions into rhetorical bigger threat? battlefields by hyping and even provoking progressive of- fenders. 45. Consider the According to the National Anthem article, schools cannot matter that since punish students for exercising free speech rights that are flag-burning is not disruptive like a silent protest such as standing. Teach- protected by the ers and administrators can voice their concerns and opin- First Amend- ions but they cannot suspend a student for not standing ment, can stu- during the national anthem. dents be pun- ished for not standing during the national an- them? 46. What do school admin- istrators and coaches say in the National An- them piece? 47. What does the Student Press Some are supportive of the student protests, others are not supportive and threatening the removal of players from athletic teams if they do not stand for the national anthem. Public schools can't discipline students for silent acts of political protest that don't disrupt the operations of a Law Center say in school, like kneeling for the anthem or refusing to say the National An- them piece? 48. What did Dr. Kerr point out to George Will is really the per- tinent question that should be asked regarding Citizens United? 49. Why does Kerr care so much about this sub- ject? the Pledge of Allegiance, said LoMonte, of the Student Press Law Center. And educational leaders will miss out on learning opportunities if they first seek to end a protest rather than allowing students to learn from it, he said. Therefore, if Mr. Will really wanted Mr. Gorsuch to answer a pertinent question, it would be: In deciding Citizens United, was the court correct that corporate managers can use American stockholders' investments to engage in political speech without the stockholders' permission? "Partly because I've spent a couple of decades of my life deeply focused on the Supreme Court's First Amend- ment-changing line of corporate-political-media spending cases that run from the Bellotti ruling in 1978 to Citizens United in 2010 (and a few related since). I can't say for sure that I have published more scholarly journal articles and books on the subject than anyone else — but I'm sure I'm not far from the front of the line. So for me, the fact that even people who should know better (like George Will) so often grossly misrepresent the Citizens United ruling creates a formidable obstacle to having a meaningful national discussion about it. And it cries out for legitimate public debate. The controversial case decided by a 5-4 vote unleashed a deluge of almost 50. What kinds of or- ganizations and related efforts has the ruling spawned in the years since? 51. What does Kerr argue about Citi- zens United and the question of people spending their own mon- ey? 52. On how the details of the Manchester, etc., leaks are MUCH less important than what they help illustrate about Ameri- can culture and limitless spending on elections that continues to surge far beyond the particulars of its holding — because that holding swept away a century-old body of law restricting corporate political media spending in candidate elections." "True, it has also spawned the rise of organizations such as American Promise, Free Speech for People, Move to Amend, and People for the American Way, promoting a variety of campaign-finance-reform efforts aimed at estab- lishing, broadly speaking, that fundamental constitutional rights belong to human beings only" ?But in reality, whether you consider yourself conservative or liberal, if you (or your retirement fund) invest money in Apple or General Electric, Nike or Exxon — to name a few of the more popular choices of stockholders today — almost certainly you do so because you hope the invest- ment will return money to you, which you can then spend on what you choose. Even more certainly, you probably don't make such investments because you hope company managers will spend your earnings on political campaigns. An oft-repeated line of political rhetoric in recent decades — especially in Oklahoma — has been the assertion that the people know better how to spend their money than government bureaucrats do. If that be the case — and for many Americans today, it seems to be — then it must follow that the people also know better how to spend their money than corporate bosses do." "Is there something particularly American about leaking? Some national allergy to protecting government secrets? Yes, in fact, there is. And whether you denounce that as a dangerous trait or accept it as an underpinning of democracy, it is unlikely to change, according to a range of former officials and students of government secrecy." government se- crets? 53. The summary of specifical- ly "what distin- guishes the Unit- ed States in a nutshell" and why? 54. The contrast be- tween the U.S. having the First Amendment and Britain having the Official Se- crets Act? 55. How the "coun- tersecrecy cul- ture" in the U.S. was cru- cially shaped by the 1971 Supreme Court's 1971 "Pentagon Papers" ruling and what it pro- hibited? "To sum up what distinguishes the United States in a nutshell: It's the First Amendment," said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. "The concept of a free press has been integral to the American idea since its inception. That's not true even of other democracies. The press here even has the right to be irresponsible, which it sometimes is." The contrast with Britain, despite the shared democratic heritage, is particularly stark. Instead of the First Amend- ment, the British have the Official Secrets Act, which al- lows the government to ban in advance the publication of government secrets and prescribes punishments not just for leakers, but also for the journalists who publish the information. "Mr. Lloyd said the countersecrecy culture in the United States was shaped not only by the First Amendment, but also by the "quite radical" interpretation by the Supreme Court in the 1971 Pentagon Papers case, which prohibited the government from ordering that leaked information not be published. In that case, Max Frankel, who was then The Times's Washington bureau chief, laid out in an affidavit a classic statement of the journalists' position on leaks. "Without the use of 'secrets,'" wrote Mr. Frankel, who later became the newspaper's top editor, "there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington." 56. Which film did Dr. Easy Rider. "A free man will scare you." It was a discussion Kerr highlight in class and what did he say about it? on individual freedom vs. a free individual and relating that to the First Amendment. 57. What did Dr. Kerr say was impor- tant about the Supreme Court in regard to free speech? 58. What was the bedrock princi- ple from Texas v. Johnson? The Supreme Court cares about the nature of free speech. The reasoning in SCOTUS cases is important. "If there is a bedrock principle, the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." 59. What were the ex- Videos of animal torture (Maryland law was struck down), ample of speech that are protect- ed under the First Amendment? 60. Where did the "marketplace of ideas" originate, and what does it prescribe? 61. What else did Dr. Kerr say on the marketplace of ideas? 62. Boos v. Bar- ry (1988) decided what? 63. Dr. Kerr it's best to do what in re- gard to expres- Westboro Baptist Church protests. Oliver Wendell Holmes. Let the ideas compete in the mar- ketplace, good ideas will takeover. Best of test of truth: power of thought to get itself accepted in competition of the marketplace. This is the most used legal theory to uphold the First Amendment. "We should be eternally vigilant against attempts to check the expression of opinions that we loathe." Societal views change, as was the case in slavery, suffrage and marriage equality. We can be totally wrong about something and not realize it. "Imagine what you'll know tomorrow." - Men in Black We must tolerate insulting and outrageous speech in order to provide adequate breathing room for the First Amend- ment. It's best to let someone express unpopular beliefs in the marketplace of ideas. sion of unpopu- lar beliefs? 64. Which country did Dr. Kerr high- light for censor- ing speech? 65. What was the subject of "The Post" movie starring Meryl Streep? 66. The Court upheld the Constitution- al First Amend- ment right of whom in Tinker v. Des Moines (1969)? 67. Which play did Dr. Kerr highlight in class as one that OU students performed often and that high school students have often been prohibited from performing? 68. What is Ameri- can Promise and what does it pro- pose? China. In China, the government censors sex scenes, drinking, gambling, luxury, words against the police, words against the judiciary, etc. The release of the Pentagon papers by the Washington Post (and the New York Times) about the Vietnam War and its true nature. The court ruled that it was not a security issue. The right of high school students to wear black armbands to protest the Vietnam War. The plaintiff in the case was Mary Beth Tinker, whom Dr. Kerr brought to OU for a talk. It is important to remember that since this case, the Supreme Court has taken more and more First Amend- ment rights away from high school students. The Vagina Monologues American Promise is leading the charge for the 28th Amendment so we the people govern the United States -- not big money, not unions, and not corporations. The goal of American Promise is to win the 28th Amendment to The Constitution to restore American democracy in which we citizens - not money, not corporations, not special interests - govern ourselves. [Show Less]