126 Chapter 4Chapter 4 || Civil LibertiesCivil Liberties
The forms of expression discussed in this section—speech, assembly, and press—all
have strong protections based on the First Amendment. The strongest protections
are for content-based expression—that is, if a regulation is trying to limit what can
be said, the Court applies the strict scrutiny standard and usually strikes down the
regulation. However, there are exceptions, such as speech that directly incites an
imminent danger. If the regulation is content neutral and does not favor one viewpoint
over another, then it is easier to uphold. But even then, the government must have a
substantial reason for limiting expression.
Less Protected Speech and Publications
Some forms of speech do not warrant the same level of protection as political
speech because they do not contribute to public debate or express ideas that have
important social value. Four categories of speech may be more easily regulated by
the government than political speech: fighting words, slander and libel, commercial
speech, and obscenity. The first two categories may be prevented by the state if certain
conditions are met, and the latter two receive some protection, but not as much as
political speech.
Fighting Words Governments may regulate fighting words, “which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.”^85 Such
laws must be narrowly written; it is not acceptable to ban all foul language, and the
prohibited speech must target a single person rather than a group. Moreover, the
question of whether certain words provoke a backlash depends on the reaction of the
targeted person. Inflammatory words directed at Pope Francis would not be fighting
words because he would turn the other cheek, whereas the same words yelled at
musician Kanye West or actor Alec Baldwin would be fighting words because he would
probably deck you. The Court clarified the test based on “what persons of common
intelligence would understand to be words likely to cause an average addressee to
fi g ht .”^86 While this provides a somewhat objective test, the fighting words doctrine has
still been difficult to apply.
Slander and Libel A more extensive line of cases prohibiting speech concerns
slander, spoken false statements that damage someone’s reputation (defamation),
and libel, written statements that do the same thing. As in many areas of First
Amendment law, it is difficult to draw the line between permissible speech and
slander or libel. The current legal standard distinguishes between speech about a
public figure, such as a politician or celebrity, and about a regular person. In short, it is
much more difficult for public figures to prove libel. A public figure has to demonstrate
that the defamatory statement was made with “actual malice” and “with knowledge
that it was false or with reckless disregard of whether it was false or not.”^87
One of the most famous libel cases was brought against Hustler magazine by the
Reverend Jerry Falwell, a famous televangelist and political activist. Falwell sued
Hustler for libel and emotional distress after the magazine published a parody of a
liquor advertisement depicting him in a “drunken incestuous rendezvous with his
mother in an outhouse” (this quote is from the Supreme Court case).^88 The lower court
said that the parody wasn’t believable, so Hustler couldn’t be sued for libel, but they
awarded Falwell damages for emotional distress. The Court overturned the damages,
saying that public figures and public officials must put up with such things, comparing
the parody to outrageous political cartoons, which have always been protected by the
First Amendment.
The freedom of the press is one of
the greatest bulwarks of liberty,
and can never be restrained but
by despotic governments.
— George Mason
fighting words
Forms of expression that “by their
very utterance” can incite violence.
These can be regulated by the
government but are often difficult to
define.
slander
Spoken false statements that damage
a person’s reputation. They can be
regulated by the government but are
often difficult to distinguish from
permissible speech.
libel
Written false statements that damage
a person’s reputation. They can be
regulated by the government but are
often difficult to distinguish from
permissible speech.
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