Tedford and Herbeck, Freedom of Speech in the United States, 9th edition

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iisbn:
9781891136528
480 pages (est.)
2024
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9781891136535

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Just published!

Freedom of Speech
in the
United States

ninth edition

Thomas L. Tedford
University of North Carolina, Greensboro

Dale A. Herbeck
Northeastern University

PREFACE

This new edition of Freedom of Speech in the United States, like previous editions, has been carefully updated to reflect recent free speech decisions of the U.S. Supreme Court, as well as ongoing controversies involving the freedom of speech guaranteed by the First Amendment. It shows how classical historical arguments, such as those involving seditious libel and religio-moral heresy, arise anew in contemporary issues, such as liability for content posted on social media and the fair use of copyrighted material. Like previous editions, this edition strives to engage students and provide clear explanations of a rich, complex subject.

This book was written to provide undergraduate students who have minimal legal background with an accessible historical survey and an up-to-date analysis of free speech issues and court cases in the United States. An effort has been made to present this information in a clearly organized manner and to explain legal terms so that the student, with the help of the case summaries in the book and the glossary, can follow the historical figures and colorful stories that are an essential part of the study of freedom of expression. In this new edition, the content has been updated, the organization refined and streamlined, and the examples and graphics program enhanced to help engage students and make the book more accessible.

The book is intended for college and university courses focusing on freedom of speech. Such courses are offered in communication studies, media studies, broadcasting, journalism, and political science departments, and usually have titles such as “Freedom of Speech,” “Freedom of Expression,” “Free Speech and Censorship,” “Free Speech and Ethics,” “Freedom of Speech, Media, and Law,” “Legal Issues in Communication,” “Communication Law,” and “Media Law.”

The book takes a liberal arts perspective on free speech issues by emphasizing historical and theoretical developments, with a conceptual structure that reveals the complicated relationships between historical laws and current events. Issues related to communication technology, especially broadcasting and the internet, are integrated throughout the book and help illustrate how historical precedents and existing laws are applied and extended to contemporary issues and contexts. The final chapter summarizes reasons for studying freedom of speech and explains theories offered by six notable First Amendment scholars.

FEATURES OF THE BOOK

The book has been carefully updated to account for the latest court decisions, current issues, and recent events, but the fundamental characteristics that distinguished previous editions remain:

The historical perspective helps students appreciate current and ongoing controversies involving freedom of speech. The first two chapters trace free speech concepts from ancient Athens and Rome, through British common law and colonial America, and up to World War I. Subsequent chapters trace the evolution of the Free Speech Clause of the First Amendment in the United States, offering 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, sedition, defamation, privacy, provocation to anger, and copyright to contemporary concerns such as free press and fair trial, hate speech, student speech rights on and off campus, and media access.
Important Supreme Court decisions are summarized in landmark case boxes inset on the pages where the cases are discussed. Each summary describes the facts of the case, identifies the legal principle at issue, and explains the broader significance of the decision. These boxes provide a solid conceptual foundation for understanding modern free speech doctrine.
Excerpts from significant Supreme Court decisions throughout the text, including well-known passages by famous Supreme Court justices, help students engage with the issues that form First Amendment law.
The appendixes provide explanations, complete with diagrams, of the federal court system (including the basic citation system for legal materials), an explanation of the various tests that courts employ in deciding free speech cases, and a detailed glossary.
More than 30 historical and contemporary photos, images, and diagrams help bring the subject alive for students. The graphics program has been updated in this edition.

FEATURES OF THE NEW EDITION

The ninth edition has been carefully updated to reflect recent developments.

Recent Supreme Court decisions include important rulings on requiring nonunion members to pay an agency fee (Janus v. American Federation of State, County, and Municipal Employees), compelled disclaimers on commercial speech (National Institute of Family and Life Advocates v. Becerra), off-campus student speech (B. L. v. Mahanoy Area School District), public employees’ speech rights (Kennedy v. Bremerton School District), the originality required to copyright computer software (Google v. Oracle America), and access to public access cable channels (Manhattan Community Access v. Halleck).
Current controversies are prominently featured, such as incitement to illegal action, true threats, compelled speech, aiding and abetting criminal activity, liability for defamatory content on social media, intentional infliction of emotional distress, cross burning, speech codes, secrecy agreements, cameras in the courtroom, reporter’s privilege, student speech on and off campus, flag desecration, restrictions on sexual expression, the fair use of copyrighted content, and net neutrality.
The updated graphics program includes new photographs of Supreme Court Justices Thurgood Marshall, Sandra Day O’Connor, Ruth Bader Ginsburg, and Sonia Sotomayor.

In response to feedback from teachers and students, some explanations and examples have been added, revised, and/or updated for greater clarity and to help generate discussion. Narratives have been added to introduce some chapters and engage student interest.

PEDAGOGY

Chapter outlines at the beginning of each chapter help make complex concepts and relationships clear to students with little or no legal background.
Internal and chapter summaries help students understand conceptual structure and relationships.
Explanations of key legal terms throughout the book clarify complex legal tests and concepts.
Practical exercises at the end of each chapter illustrate course content.
Selected readings at the end of each chapter provide resources for exploring the themes set out in the chapter.

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 the framers of the U.S. Constitution understood freedom of speech.

Chapter 2, “Freedom of Speech in America to World War I,” traces the evolution of freedom of speech from the trial of publisher John Peter Zenger in 1735, through the Alien and Sedition Acts of 1798 and nineteenth-century conflicts involving the struggle for democracy and civil rights, to World War I and the Espionage Act of 1917.

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 first four chapters in this section discuss the traditional libels of Anglo-American law: seditious libel, private libel, blasphemous libel, and obscene libel. The next four chapters move on to contemporary controversies: privacy, religio-moral heresy, provocation to anger and words that wound, and commercial speech.

Chapter 3, “Political Heresy,” explains historical and contemporary efforts to suppress seditious libel and other forms of political heresy. The final section of this chapter focuses on recent efforts to prevent criticism of public officials, regulate email and social media posts, and otherwise restrict freedom of speech.

Chapter 4, “Defamation,” traces the evolution of the actual malice standard set out in New York Times v. Sullivan, recent cases applying the test, and emerging questions about whether the Times-Sullivan standard is too speech-protective. The chapter ends with a review of recent efforts to use libel law for censorship, including strategic lawsuits against public participation (SLAPPS) and libel tourism. A new section considers the future of defamation law.

Chapter 5, “Privacy,” introduces the fundamentals of privacy law, including its sources in U.S. and state constitutions, the common law, and federal and state statutes, as well as the four common law privacy torts and current controversies such as anonymity and email privacy.

Chapter 6, “Religio-Moral Heresy: From Blasphemy to Obscenity,” in response to comments from professors who have used the book, has been streamlined and reorganized into three sections to make it more concise and accessible. The first section now covers the historical progression of blasphemy, Darwinism, and “immoral” ideas. The second section recounts the history of obscenity law, focusing on the Hicklin Rule, the Roth test, and the Miller test. The third section addresses contemporary efforts to regulate nonobscene and indecent content, focusing on child pornography, adult businesses, cyberporn, and indecent broadcasting.

Chapter 7, “Provocation to Anger and Words that Wound,” discusses issues related to “worthless speech,” expression considered to have little, if any, social value as a step to the truth. It includes provocation to anger and words that wound, as well as hate speech on college campuses.

Chapter 8, “Commercial Speech,” explores the complex relationships between restrictions on commercial speech and the First Amendment. The chapter has been updated to focus on unsolicited commercial speech (such as spam, robocalls, and robotexts) and compelled commercial speech (such as rules that require disclaimers in commercial advertising).

Part III, “Special Issues,” addresses problems of communication freedom that arise from situational factors.

Chapter 9, “Prior Restraint,” discusses issues such as public distribution of information, controls on the media, and film review boards, with a special emphasis on national security. The chapter has been updated to discuss the use of secrecy agreements to censor publications critical of the government, as well as efforts to prevent the release of secret documents.

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 expanded discussion regarding television cameras in courtrooms. Updates include discussion of a proposed federal shield law that could protect reporters from being required to divulge their sources in certain circumstances.

Chapter 11, “Constraints of Time, Place, and Manner,” covers constraints on speech in the public forum and on private property. This chapter has been revised to simplify the discussion of the open forum on public property and to expand the discussion of “speech plus,” including a new section devoted to loud speech.

Chapter 12, “Institutional Constraints: Schools, the Military, and Prisons,” discusses issues in special settings. The section on student speech has been updated to include anti-Hazelwood laws, restrictions on school libraries, and new Supreme Court decisions dealing with students’ off-campus expression (B. L. v. Mahanoy School District) and schoolteachers’ and public employees’ rights (Kennedy v. Bremerton School District).

Chapter 13, “Copyright,” sets out the general principles of copyright law and the tension between the Intellectual Property Clause in the Constitution (Article 1, Section 8, Clause 8) and the Free Speech Clause of the First Amendment. New content includes an expanded discussion of originality, the fair use factors, and copyright and technology.

Chapter 14, “Access,” considers whether the First Amendment includes a general right of access to government property and information, as well as public access to privately owned media. The discussion of the Freedom of Information Act has been updated and new examples of the importance of access to government information have been added. Discussions of the growing threat to the marketplace of ideas posed by the concentration of media ownership and the domination of the political process by large corporations and wealthy individuals have also been updated.

Part IV, “Conclusion,” consists of a single chapter.

Chapter 15, “Approaches to Free and Responsible Communication,” discusses three reasons for studying freedom of speech and summarizes the free-speech philosophies of six leading First Amendment theorists . The chapter also introduces the subject of communication ethics and urges readers to think about the relationship between freedom of speech and the responsibilities that go with that liberty.

RESOURCES FOR INSTRUCTORS

A collection of instructional materials supports classroom use of Freedom of Speech in the United States.

The Instructor’s Manual includes model syllabi, course projects, additional exercises and activities, free speech resources (both print and video), hundreds of topics for oral reports and papers, and a text bank consisting of more than 650 items (true-false and multiple choice questions, as well as hypothetical situations).

A website, author-developed, 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 about the freedom of speech and the full text of more than 125 notable Supreme Court decisions, including all the landmark cases featured in the book. To make the library easily accessible, the contents are organized by chapter and by case name.

The "Free Speech Resources: are selected to help teachers and students follow recent developments and support their research, include links to a broad range of government websites and websites devoted to the freedom of speech, maintained by organizations with an interest in free speech, and designed for conducting legal research.

ACKNOWLEDGMENTS

More than forty years ago, Thomas L. Tedford, a professor at the University of North Carolina at Greensboro, had the idea for a textbook he could use in his course on freedom of speech. The volume that resulted, now in its ninth edition, stands as a tribute to Dr. Tedford’s devotion to the freedom guaranteed by the Free Speech Clause of the First Amendment. Like Justice William J. Brennan, whom he greatly admired, Professor Tedford thought “debate on public issues should be uninhibited, robust, and wide-open.” Because it is important that a broad range of diverse voices be heard, he was wary of any effort by the government to restrict speech and debate. Professor Tedford was a founder and early chair of the Commission on Freedom of Expression of the National Communication Association, an editor of the Commission’s newsletter and the Free Speech Yearbook, and an award-winning scholar, as well as the author or coauthor of seven books. 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 significant figure in First Amendment law and author of Speech and Law in a Free Society, Professor Haiman appreciated that his principled defense of free speech would not appeal to the “squeamish or apathetic.” A thoughtful critic and generous colleague, Professor Haiman was always willing to review a manuscript and offer insightful feedback. He is one of the six theorists featured in Chapter 15. Professor Haiman, who passed away in 2015, contributed to the project in a second way: the second 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 Pat Arneson, Duquesne University; 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; Edward C. Brewer, Appalachian State 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); Adrienne E. Hacker Daniels, Illinois College; William R. Davie, University of Louisiana at Lafayette; Juliet Dee, University of Delaware; David Dewberry, Rider University; Arthur P. Doederlein, Northern Illinois University; Matt Dunn, Colorado State University; Michael Dupagne, University of Miami; Paul D. Fischer, Middle Tennessee State University; Donald A. Fishman, Boston College; Ted Frederickson, University of Kansas; Rebecca A. Gardner, Sacramento State University; 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; Jennifer Keohane, George Mason University; 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; David M. Lucas, Ohio University; John J. Makay, Bowling Green State University; Stephanie A. Martin, Southern Methodist 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; Ryan McGeough, University of Northern Iowa; 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; Tony Palmieri, University of Wisconsin–Oshkosh; Richard A. Parker, Northern Arizona University; Amy Pason, University of Minnesota; Thomas Pyle, Southern Oregon University; Loretta Ramos, Fresno City College; Jason Reineke, Middle Tennessee State University; 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; Paula S. Tompkins, St. Cloud State University; David Trebing, Kent State University; James Van Dyke, Marian College; David Vest, Colorado State University; Deborah A. Wieczorkowski Wanamaker, University of Pittsburgh; Bernadyne Weatherford, Rowan University; Karen Whedbee, Northern Illinois University; and Ginny Whitehouse, Eastern Kentucky University.

For the ninth edition, we are indebted to Pat Arneson, Duquesne University; Ed Brewer, Appalachian State University; Rebecca Gardner, California State University, Sacramento; Paul H. Gates, Jr., Appalachian State University; Irene Grau, California State University Los Angeles; Adrienne Hacker Daniels, Illinois College; Elizabeth Hindman, Washington State University; Sydne Kasle, Rock Valley College; Casey Ryan Kelly, University of Nebraska–Lincoln; Steve Macek, North Central College; Peter Marston, California State University, Northridge; Stephanie Martin, Boise State University; Elizabeth Meyers-Bass, Colorado State University; Emily Berg Paup, College of Saint Benedict and Saint John’s University; Shannon Stevens, California State University, Stanislaus; M. Elizabeth Thorpe, SUNY Brockport; Theron Verdon, State University of New York, College at Oneonta; Deborah A. W. Wanamaker, University of Pittsburgh; and Karen Whedbee, Northern Illinois 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 analysis, simplified the prose, and strengthened the visual elements. We owe her a profound debt of gratitude and offer this brief note of thanks to her and Brian Henry, the general manager at Strata Publishing, for all their efforts on Freedom of Speech in the United States. Their hard work is evident on every page, and they deserve far more credit for the ongoing success of this book than a paragraph in these acknowledgments.