What speech does the First Amendment not protect?
These questions were answered by Dr. Volker Henning, associate vice president of Academic Administration at Southern Adventist University, during a recent presentation to the Cleveland Media Association.
“We can be glad that we live in a country that values the rule of law,” Henning said.
Laws in the United States are Constitutional, common law or case law developed in the courts.
The First Amendment to the Constitution guarantees freedoms of speech, religion, press and assembly.
“What you can say and what you can print are not necessarily the same thing,” Henning said.
Henning pointed out some feel the First Amendment gives too much freedom of speech.
“Political speech is the most protected form of speech in terms of what case law has done,” Henning said.
School speech of students in public schools is also protected.
Fighting words and protests are also protected under the First Amendment.
Time, place and manner of the speech plays a large part in whether the speech is protected under the Constitution.
Sometimes limits are placed on protests; for example, physical distances from a funeral, Henning said.
Case law has impacted how these freedoms are addressed in specific situations. Protesting at soldier’s funerals has been determined to be protected speech, Henning said.
Motorcycle riders blocking protesters’ view of the soldier’s funeral and waving giant American flags has also been deemed protected, Henning said.
“And so speech meets speech which is probably the most healthy thing for the overall movement of democracy,” Henning said.
It was a court case that established the burden of proof required in a libel case. The case actually stemmed from an advertisement in the New York Times soliciting funds to help Dr. Martin Luther King Jr. In the ad an inaccurate description of an arrest was given. Though no names were mentioned, the public official described sued the newspaper.
“He kind of took the attitude the shoe fits [so] it must be me they are talking about,” Henning said.
The Supreme Court found that the advertisement was “appropriate speech.”
“In order for libel to be proved the plaintiff has to prove actual malice, that there was an intent to do harm to the individual, that it was defamatory and that it was false,” Henning said.
The truth is a media outlet’s best defense against libel.
Fair comment is also protected speech.
“It is OK to have an amount of criticism in a civil kind of a discourse,” Henning said.
However, there are types of speech that have been determined not to be protected. These include obscenity, hate speech, threats and speech that is used to incite violence.
“If a type of speech is such that it is likely to produce danger in a very clear and unequivocal way, that’s not appropriate,” Henning said.
Obscenity is legally defined as, “... that the average person applying contemporary, community standards would find that the work taken as a whole appeals to prurient interests … that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and the work as a whole lacks serious literary, artistic, political or scientific value.”
Henning said the law leaves room for state and local interpretation of the term. Pornography, however, is legal.
“What is considered obscene here in the South … could be very, very different from what is considered obscene in a much more liberal part of the country,” Henning said.
Opinion is protected speech, but consequences of that speech from employers and others can also be protected. Henning said this is another example of “speech meeting speech.”
Parody is also considered protected speech. Henning said there is still discussion about the line between parody and copyright infringement.