Historic Constitutional Tests





PSC 101/ Internet


Essay Answer/ Question C








Three interpretations of the First Amendment, known as the Historic Constitutional Tests, were developed in the first part of the twentieth century. These tests have been used to make decisions, and to provide background regarding freedom of speech. They are known as the bad tendency doctrine, the clear and present danger doctrine, and the preferred position doctrine. Today, the Current Constitutional Tests are more likely to be used, and they are known as prior restraint, vagueness, least drastic means, content and viewpoint neutrality, and commercial speech.


According to Dr. Balboni in the video segment addressing free speech and the First Amendment, the following utterances have NOT been deemed by the courts protected by the word speech:


LIBEL/SLANDER
RECKLESS ENDANGERMENT


FIGHTING WORDS/INCITEMENT/ASSAULT


CONSPIRACY TO COMMIT CRIME


OBSCENITY


SEDITIOUS SPEECH





Although these forms of speech are not protected, it is difficult for the courts to define and interpret how to decide cases involving such utterances because, circumstances are varied, and society changes. It has been helpful to differentiate belief, speech, and action in regulation of free speech.


EXPLANATIONS:
LIBEL/SLANDER


Libel as defined in Webster’s Dictionary is “any written or printed matter tending to injure a person’s reputation unjustly”, and slander means the same as libel, but spoken. One of the best known cases that established guidelines for libel cases was The New York Times v Sullivan (1964). In this case, Sullivan, a public official, was not awarded damages because it was not proven that the printed article was done so with malice to harm his reputation unjustly, and public officials can not receive damages unless they can prove malice. Had the printed article been about Sullivan’s private life, the results may have been different, as the guidelines are different for the private sector, which includes a public official’s private life.


RECKLESS ENDANGERMENT
In the case Schenk v United States (1919), Justice Oliver Wendell Holmes used the famous example of shouting “Fire!” falsely in a crowded theater to define the meaning of reckless endangerment. Justice Holmes also created the clear and present danger doctrine, and said “if words are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.” It was decided that speech leading to direct interference with recruitment of soldiers was an immediate danger and a major evil.


FIGHTING WORDS/INCITEMENT/ASSAULT
Fighting Words has been defined as speech that “ by their very utterance inflict injury or incite an immediate breach of peace”, and “ have a direct tendency to cause acts of violence by the person to whom, individually, the remarks are addressed.” It has also been judged that insulting, angry, abusive, and even racial, ethnic, or sexual slurs are not “fighting words” in the Constitutional sense, when such types of speech are not directed to any specific person. In recent years, interpretations have been sought to settle issues of racial, ethnic, and sexual harassment, (which are forms of assault), by many universities and colleges. A great majority of employers address racial, ethnic, and sexual harassment by requiring adherence to rules or bylaws as condition for employment, and this would be an example of non-governmental restriction of free speech.


CONSPIRACY
To conspire, as Webster’s Dictionary defines it, is “to plot or scheme together; to cooperate (towards one end)”. Conspiracy to commit a crime or a criminal act, to enlist others for aid to attain the goal of the criminal scheme is not a protected form of speech.


OBSCENITY
Obscenity has been difficult for the courts to define, as America’s attitudes and standards for decent morality change. The courts tend to change with society’s changing value system, which is described by Dr. Balboni as the “ebb and flow”. This leads us to see that what is considered to be “offensive, or patently offensive” and obscene today, might someday in the future be an accepted standard of decency. Also, it is quite difficult to gather a jury that agrees on “what is obscene?” However, when obscenity concerns minors, American society and the courts are very clear; obscenity, obscene materials, are not protected if sexually explicit materials are aimed at minors, or about minors.


SEDITIOUS SPEECH
Justice Robert Jackson fixed an American standard that has been very difficult