Online Speech Bank - Index of Speeches A-F - Transcripts Audio Video
Texas Division, Sons of Confederate Veterans , the Court relied on the same analysis used in Pleasant Grove City to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.
More recently, in Matal v. As in the previous section, the governmental regulations here considered may have only the most indirect relation to freedom of expression, or may clearly implicate that freedom even though the purpose of the particular regulation is not to reach the content of the message.
First, however, the judicially formulated doctrine distinguishing commercial expression from other forms is briefly considered. The conclusion that a communication proposing a commercial transaction is a different order of speech underserving of First Amendment protection was arrived at almost casually in in Valentine v. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free. Next, the Court overturned a conviction under a state statute that made it illegal, by sale or circulation of any publication, to encourage or prompt the procuring of an abortion.
The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing the assistance that would be provided state residents in obtaining abortions in the other state. Then, the Court swept all these distinctions away as it voided a statute that declared it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs.
State interests asserted in support of the ban—protection of professionalism and the quality of prescription goods—were found either badly served or not served by the statute. Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.
In Expressions Hair Design v. Schneiderman , the Court held that a New York State statute that prohibits businesses from displaying a cash price alongside a surcharge for credit card purchases burdens speech. Although commercial speech is entitled to First Amendment protection, the Court has clearly held that it is different from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties. Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.
Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech. Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.
Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive. Discovery Network, Inc.
In , the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal. In Posadas de Puerto Rico Assocs. Tourism Co. For instance, somewhat broader times, places, and manner regulations are to be tolerated, and the rule against prior restraints may be inapplicable. For instance, in Sorrell v. IMS Health, Inc. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.
Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception.
Recent decisions suggest, however, that further distinctions may exist. Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. Also difficult to justify is taxation that targets specific subgroups within a segment of the press for differential treatment. The statute applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature e.
Just as newspapers and other communica-tions businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB , the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem.
He has no special privilege to invade the rights and liberties of others. The regulation here in question has no relation whatever to the impartial distribution of news. The First Amendment , far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.
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Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some.
- I Have a Dream.
- An ongoing crisis: Freedom of speech in Turkey?
- See a Problem?;
- On Liberty.
- Romance and Love.
Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack, even if such activities might promote speech. Because there are a lim-ited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to use them and denying the greater number of applicants such permission.
Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity. In certain respects, however, governmental regulation does implicate First Amendment values, and, in Red Lion Broadcasting Co. The frequencies are limited and some few must be given the privilege over others.
Some Slight Freedom of Speech in Canada
The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.
It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. In Columbia Broadcasting System v. Democratic National Committee , the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. However, in CBS v. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.
League of Women Voters , the Court took the same general approach to governmental regulation of broadcasting, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion.
Second, broadcasting is uniquely accessible to children, even those too young to read. The ease with which children may obtain access to broadcast material. However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper. FCC upheld federal statutory requirements that cable systems carry local commercial and public television stations. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area Educational Telecommunications Consortium v.
FCC , found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. Subsequently, in United States v. Playboy Entertainment Group, Inc. This other provision requires that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe. The Court has recognized two central ways in which a law can impose content-based restrictions, which include not only restrictions on particular viewpoints, but also prohibitions on public discussions of an entire topic.
Barry , the Court held that a Washington D.
If it did not, it was covered by the First Amendment , and the speech was protected unless the restraint was justified by some test relating to harm, such as the clear and present danger test or the more modern approach of balancing the presumptively protected expression against a compelling governmental interest. As a result, expression that before would have been held absolutely unprotected e. While the movement was temporarily deflected by a shift in position with respect to obscenity and by the recognition of a new category of non-obscene child pornography, the most recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.
Even if a category of speech is unprotected by the First Amendment , regulation of that speech on the basis of viewpoint may be impermissible. City of St. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. In this country, the Sedition Act of made criminal, inter alia, malicious writings that defamed, brought into contempt or disrepute, or excited the hatred of the people against the government, the President, or the Congress, or that stirred people to sedition.
Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.
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