William_T._Bianco,_David_T._Canon]_American_Polit

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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