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Freedom of Speech
Freedom of Speech in the United States was written to provide students who have minimal legal background with a readable historical survey and an up-to-date analysis of free speech issues and cases in the United States. An effort has been made to present this information in a clearly organized manner and to explain specialized terms so that the student, with the help of the book’s case summaries and glossary, can follow the historical figures and fascinating stories that are such an important part of the study of freedom of expression. The eighth edition has been updated to reflect the latest free speech decisions of the U.S. Supreme Court, as well as ongoing controversies such as Wikileaks and the release of government documents, the liability of Internet Service Providers for user behavior, file hosting services that can be used to share copyrighted material, Net neutrality, libel tourism, and the implications to U.S. citizens of European laws concerning the right to be left alone..
The text is intended for college and university courses that focus on the free speech clause of the First Amendment. Such courses are offered in many departments of communication, media studies, broadcasting, journalism, and political science. Courses usually have titles such as “Freedom of Speech,” “Freedom of Expression,” “Free Speech and Ethics,” “Media Law,” “Communication Law,” “Legal Issues in Communication,” and “Intellectual Freedom and Censorship.”
This book takes a liberal arts perspective on free speech issues by emphasizing historical and theoretical developments, with a conceptual approach throughout that shows the relationships between historical laws and contemporary concerns. For example, the first two chapters survey the development of the idea of freedom of expression in Western culture. Subsequent chapters discuss the important subjects of sedition; obscenity; words that wound and provocation to anger; restrictions on time, place, and manner; and the special constraints of institutional settings. Other chapters cover topics essential for those who need a practical understanding of communication law: defamation, privacy, commercial expression, prior restraint, free press and fair trial, copyright, and access. Broadcasting and Internet issues are integrated througout the book, showing how historical precedents have been extended and applied to new communication technology. The last chapter summarizes reasons for studying freedom of speech, as well as the free speech theories of six leading First Amendment scholars..
FEATURES OF THE BOOK
While the book has been carefully updated to account for the latest court decisions, current issues, and recent events, the fundamental characteristics that distinguished previous editions remain:
The book offers the historical perspective required to appreciate current and ongoing controversies involving freedom of speech. The first two chapters trace free speech concepts to British common law and the evolution of those concepts from colonial America to World War I. Subsequent chapters follow the gradual evolution of the Free Speech Clause of the First Amendment, providing a unique perspective on both the freedom of speech and the necessary limitations on that freedom.
The conceptual structure helps students see how historical laws and case decisions shape current free-speech policy, even in the Internet age. Each chapter in Part II and Part III focuses on a particular aspect of free speech, tracing the evolution of historical issues such as prior restraint, provocation to anger, and copyright to contemporary concerns such as hate speech, threats posted on social media, and Internet piracy.
Important Supreme Court decisions are summarized in landmark case boxes inset on the pages where the cases are discussed. Each summary explains the facts of the case, important tests and principles, and the broader significance of the decision. These case boxes, which are distributed throughout the book, provide a solid conceptual framework for understanding modern free speech doctrine.
- Excerpts from major cases throughout the text provide students with the opportunity to engage with decisions that form First Amendment law.
- To make complex concepts and relationships clear to students with little or no legal background, each chapter begins with a concise outline of that chapter’s contents. Summaries for the major topics are used consistently within each chapter. Each chapter ends with a comprehensive synopsis. Throughout the book, key legal tests and terms are explained. Care has been taken to avoid legalese that might distract or confuse the reader.
- Each chapter ends with exercises and a list of “Selected Readings,” notable books that expand on the themes set out in the chapter.
- The appendixes provide short explanations, complete with diagrams, of the federal court system (including the basic citation system for legal materials); an explanation of the various tests employed by the courts in deciding free speech cases; and a glossary of terms.
- More than 30 historical and contemporary photos and illustrations, many new to this edition, help bring the subject alive for students.
FEATURES OF THE NEW EDITION
eighth edition has been carefully updated to reflect recent developments.
- Recent free speech decisions of the United States Supreme Court are reflected in the new edition, including important rulings on speech that threatens (Elonis v. United States), the right not to speak (Walker v. Texas Division, Sons of Confederate Veterans), privileged communication (Air Wisconsin Airlines Corp. v. Hoeper), streaming video (American Broadcasting v Aereo), and protests outside abortion clinics (McCullen v. Coakley).
- Current controversies concerning WikiLeaks and the release of government documents; libel tourism; social media, privacy, defamation, and threats; student speech on and off campus, file sharing, net neutrality, and issues concerning national borders in the Internet age have also been incorporated and updated.
To enhance student comprehension and interest, the graphics program has been updated. The eighth edition features a new landmark case box for Branzburg v. Hayes (Chapter 10) and a new diagram for assessing the constitutionality of restrictions on symbolic speech (Chapter 11), as well as several new photographs that highlight recent issues and cases.
Throughout the book, in response to feedback from teachers and students, some explanations and examples have also been revised or expanded to enhance clarity and student interest. Some of these more detailed revisions are discussed in the next section of the preface.
PLAN OF THE BOOK
The text is divided into five main sections.
Part I, “Historical Developments,” places freedom of expression in its historical context.
Chapter 1, “Freedom of Speech: The English Heritage,” surveys the development of free speech ideas, with an emphasis on the relationship between English common law and the way that the framers of the Constitution understood freedom of speech.
Chapter 2, “Freedom of Speech in America to World War II,” traces the evolution of freedom of speech from the colonial era to the conclusion of World War I, when the United States Supreme Court became involved in deciding a wide variety of First Amendment cases.
Part II, “Controls upon the Content of Speech,” studies the evolution of freedom of speech from the end of World War I to the present. The chapters in this section begin with the four traditional libels of Anglo-American law: seditious libel, private libel, blasphemous libel, and obscene libel, then move on to contemporary controversies such as hate speech.
Chapter 3, “Political Heresy: Sedition in the United States since 1917,” explains efforts to suppress seditious libel and other forms of political heresy from 1917, up to the adoption of and recent changes to the USA PATRIOT Act since the September 11, 2001, attacks on the Pentagon and the World Trade Center. The final section focuses on contemporary efforts to regulate political heresy, criticism of public officials, compelling speech, and threats communicated through the spoken word, e-mail, and Facebook postings.
Chapter 4, “Defamation,” has been expanded to discuss privileged communication. The final part of this chapter, which discusses strategic lawsuits against public participation (SLAPPS) and libel tourism, is updated to reflect the first federal court decision involving the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH Act).
Chapter 5, “Privacy,” introduces the fundamentals of privacy law, including private communication, anonymity, e-mail privacy, and efforts to unmask anonymous speakers. Updates include an expanded discussion of newsworthiness and public interest, such as the potential international implications of the European Court of Justice’s decision in Google v. Spain, which established “the right to be forgotten.”
Chapter 6, “Religio-Moral Heresy: From Blasphemy to Obscenity,” traces the evolution of laws against blasphemy and obscenity to recent efforts to regulate child pornography and “indecent” broadcasting.
Chapter 7, “Provocation to Anger and Words that Wound,” discusses issues such as “fighting words” and abusive speech, including efforts to regulate hate speech on college campuses.
Chapter 8, “Commercial Speech,” explains the complex relationships between restrictions on commercial speech and the First Amendment. The chapter ends with a discussion of regulations on special types of commercial speech, including advertising that promotes sin or vice products, compelled commercial speech, unsolicited commercial e-mail, and charitable solicitations. A new diagram illustrates the evolution of the four-part Central Hudson test.
Part III, “Special Issues,” addresses problems of communication freedom that arise from situational factors.
Chapter 9, “Prior Restraint,” discusses an array of issues such as public distribution of handbills, media controls, and film review boards, with a special emphasis on national security. The chapter has been updated to discuss leaks of classified government documents, especially Edward Snowden’s exposure of the National Security Agency’s extensive global surveillance program, as well as the limitations of prior restraint in the Internet age.
Chapter 10, “Special Problems of a Free Press,” discusses the tension between a free press and the right to a fair trial that is guaranteed by the Sixth Amendment, with an increased emphasis on reporter’s privilege and recent developments regarding shield laws. Updates include government efforts to force James Risen, a New York Times reporter and book author, to divulge sources who shared information about potentially illegal CIA actions. A landmark case box devoted to the foundational case of Branzburg v. Hayes (1972) has been added to this chapter.
Chapter 11, “Constraints of Time, Place, and Manner,” covers a broad range of constraints in the public forum and on private property. Updated to reflect McCullen v. Coakley, a challenge to a Massachusetts law that banned all protests within 35 feet of a reproductive health care facility, this chapter also offers a discussion of “speech plus” and special issues raised by flag desecration laws. A new diagram helps clarify the O’Brien test for regulations on symbolic speech.
Chapter 12, “Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons,” discusses issues such as school libraries and the First Amendment, religious garb and military uniform requirements, and criminals’ profits from writing about crime, with a particular emphasis on students’ free-speech rights. It has been updated to cover current controversies involving student attire with political messages, recent state laws regarding student journalists, and conflicting federal court decisions involving off campus-expression.
Chapter 13, “Copyright,” sets out the general principles of copyright law that grew out of print technology and explores the complex relationship between the Intellectual Property Clause in the Constitution (Article 1, Section 8, Clause 8) and the Free Speech Clause of the First Amendment, particularly as new media forms have developed. New to this edition are recent cases involving parodies, federal court decisions in Authors Guild v. Google, Inc. and Viacom v. YouTube, and the issues raised by file-hosting services such as Megaupload.com and streaming video.
Chapter 14, “Access,” considers whether the First Amendment includes a general right of access, access to government property, information, and meetings, as well as public access to privately owned media. In the new edition, the chapter also discusses the new FCC rules governing net neutrality.
Part IV, “Conclusion,” consists of a single chapter.
Chapter 15, “Approaches to Free and Responsible Communication,” discusses the main reasons for studying freedom of speech and summarizes the free-speech philosophies of six leading First Amendment theorists of the twentieth century. The chapter then introduces the subject of communication ethics and urges readers to think about the relationship between liberty of speech and the responsibilities that go with that liberty.
RESOURCES FOR INSTRUCTORS
A rich collection of instructional materials supports the classroom use of Freedom of Speech in the United States.
The Instructor’s Manual, expanded in this edition, includes model syllabuses, course projects), additional exercises and activities, free speech resources (including print and video), hundreds of topics for oral reports and papers, and other resources.
A web site (www.tedford-herbeck-free-speech.com) offers additional resources for teachers and students, including a free speech library and an extensive list of free speech resources.
- The “Free Speech Library” contains 50 important historical documents related to freedom of speech and the full text of more than 125 important Supreme Court decisions, including all the landmark cases discussed in the book. To make the library easily accessible, the cases are organized both by chapter and by case name.
The “Free Speech Resources,” selected to help teachers and students users track recent developments and support their research, includes links to a broad range of government web sites, sites devoted to freedom of speech, special sites for legal research, and topical blogs and podcasts.
More than thirty years ago, Thomas L. Tedford, a professor at the University of North Carolina at Greensboro, had the idea for a textbook that he could use in his course on freedom of speech. The volume that resulted, now in its eighth edition, stands as tribute to Dr. Tedford’s devotion to the essential freedoms guaranteed by the First Amendment. Like Justice William J. Brennan, whom he greatly admired, Professor Tedford believed in the principle that “debate on public issues should be uninhibited, robust, and wide-open.” Professor Tedford was one of the founders of the Commission on Freedom of Expression of the National Communication Association, an editor of the Free Speech Yearbook, and an award-winning author. Professor Tedford passed away in 2009, but his memory lives on in the pages of this volume.
Freedom of Speech in the United States also benefited from the efforts of Franklyn S. Haiman, a professor emeritus of communication studies at Northwestern University, who was a reader for the first edition and consulting editor for five subsequent editions. A major figure in First Amendment law, Professor Haiman shared Thomas Jefferson’s commitment to the “boisterous sea of liberty.” An invaluable resource, Professor Haiman was always willing to review a manuscript and to offer insightful suggestions. Beyond his editorial work, Professor Haiman is one of the six theorists prominently featured in Chapter 15. Professor Haiman, who passed away in 2015, contributed to the project in a second way: the junior author was one of his students.
This book has also benefited from feedback from reviewers and users. For reading and making suggestions on previous editions of the text, we are indebted to George D. Arnold, American University; Bernardo Attias, California State University, Northridge; Charles H. Ball, Simmons College; Paul Barefield, University of Southwestern Louisiana; Lillian L. Beeson, University of Pittsburgh at Greensburg; Charlyne Berens, University of Nebraska–Lincoln; Mary Elizabeth Bezanson, University of Minnesota, Morris; Bradley J. Bloch, University of Wisconsin–Milwaukee; Sandra L. Borden, Western Michigan University; Bruce Bubacz, University of Missouri–Kansas City; Judith M. Buddenbaum, Colorado State University; Ron Burgher, Concord College; Larry L. Burriss, Middle Tennessee State University; Mary Carver, Northern Illinois University; Susan Chang, University of Miami; Kevin A. Clark, Oregon State University; Roger Conaway, University of Texas at Tyler; Grant C. Cos, Rochester Institute of Technology; Michael K. Curtis, Wake Forest University (School of Law); William R. Davie, University of Louisiana at Lafayette; David Dewberry, Rider University; Arthur P. Doederlein, Northern Illinois University; Michael Dupagne, University of Miami; Paul D. Fischer, Middle Tennessee State University; Donald A. Fishman, Boston College; Ted Frederickson, University of Kansas; Ann M. Gill, Colorado State University; Juliet Gill, University of Miami; Trischa Goodnow, Oregon State University; Jean Goodwin, Northwestern University; William I. Gorden, Kent State University; John S. Gossett, University of North Texas; David Gould, Queens College; Philip A. Gray, Northern Illinois University; S. L. Harrison, University of Miami; Jeffrey Hedrick, Jacksonville State University; Virginia H. Higgins, Emporia State University; Elizabeth Blanks Hindman, North Dakota State University; Erica Hollander, Metropolitan State University of Denver; Charles Howard, Tarleton State University; Carl T. Hyden, Morgan State University; Les Hyder, Eastern Illinois University; Richard Ice, St. John’s University; Michael T. Ingram, Whitworth College; David L. Jamison, University of Akron; Richard L. Johannesen, Northern Illinois University; Carl L. Kell, Western Kentucky University; Teresa Keller, Emory and Henry College; Robert L. Kerr, University of Oklahoma; Edward M. Kimbrell, Middle Tennessee State University; Rita Kirk, Southern Methodist University; Peter N. Kirstein, St. Xavier University; Howard Kleiman, Miami University; Kassian A. Kovalcheck, Vanderbilt University; Dan Kozlowski, Saint Louis University; Robert W. Langran, Villanova University; Charles Levendosky, University of Wyoming/Casper College; John J. Makay, Bowling Green State University; Molly Mayhead, Western Oregon University; Shannon McCraw, Southeastern Oklahoma State University; Todd F. McDorman, Wabash College; Lee McGaan, Monmouth College; Ruth McGaffey, University of Wisconsin–Milwaukee; Michael A. McGregor, Indiana University; Ron Miskoff, Rutgers University; Terence Morrow, Gustavus Adolphus College; William O. Moseley, Jr., a Greensboro attorney; Charles Mullin, University of California, Santa Barbara; Paul Newman, Indiana University; Frank O’Mara, State University of New York at Oneonta; Ileana Oroza, University of Miami; William J. Osborne, Kent State University–Stark Campus; Catherine H. Palczewski, University of Northern Iowa; Richard A. Parker, Northern Arizona University; Amy Pason, University of Minnesota; Thomas Pyle, Southern Oregon University; Loretta Ramos, Fresno City College; David Robinson, Youngstown State University; Timothy A. Rothberg, Houston Baptist University; Maureen Rubin, California State University, Northridge; Stuart A. Ryder, Judson College; Edward Schiappa, University of Minnesota; Sandy Scott, University of Missouri; Roger Soenksen, James Madison University; Michelle Stanton, California State University, Northridge; John D. Stone, James Madison University; Samuel A. Terilli, University of Miami; A. Yvonne Thrash, University of Texas at Tyler; James Van Dyke, Marian College; David Vest, Colorado State University; Deborah A. Wieczorkowski Wanamaker, University of Pittsburgh; Bernadyne Weatherford, Rowan University; and Karen Whedbee, Northern Illinois University.
For the eighth edition, we are indebted to Pat Arneson, Duquesne University; Charlyne Berens, University of Nebraska–Lincoln; Edward C. Brewer, Appalachian State University; Larry L. Burriss, Middle Tennessee State University; Grant C. Cos, Rochester Institute of Technology; Adrienne E. Hacker Daniels, Illinois College; Juliet Dee, University of Delaware; David R. Dewberry, Rider University; Matt Dunn, Colorado State University; Rebecca A. Gardner, Sacramento State University; Jennifer Keohane, George Mason University; Dan V. Kozlowski, St. Louis University; David M. Lucas, Ohio University; Stephanie A. Martin, Southern Methodist University; Ryan McGeough, University of Northern Iowa; Tony Palmieri, University of Wisconsin–Oshkosh; Jason Reineke, Middle Tennessee State University; Roger Soenksen, James Madison University; Paula S. Tompkins, St. Cloud State University; David Trebing, Kent State University; Karen Whedbee, Northern Illinois University; and Ginny Whitehouse, Eastern Kentucky University.
Finally, we are fortunate to be working with Kathleen Domenig, who was development editor for the first edition (published by Random House), and who now has her own company, Strata Publishing, Inc. Her support for this project has been unwavering and her suggestions for this new edition have sharpened the argument, simplified the prose, and kept the project on schedule. We owe her a profound debt of gratitude and offer this brief note of thanks to her and to Brian Henry, the general manager at Strata Publishing, for all of their efforts on our behalf. Their hard work is evident on each and every page of Freedom of Speech in the United States and they deserve more credit than a single paragraph in these acknowledgements.