Schenck v. United States (1919) was the landmark case in which the US Supreme Court begun interpreting the First Amendment substantially or to adjudicate freedom of speech or expression (KERSCH, 2003). The court underscored that speech or expression had to represent a “clear and present danger” in order to lead to prosecution under laws established to suppress freedom of speech. While Schenck established a relatively liberal doctrine, “bad tendency” doctrine, it led to several convictions for sedition between 1919 and 1968. The standards evolved over the years to another landmark case, Brandenburg v. Ohio (1969), which articulated that the standard of “clear and present danger” was highly vague and that speech/expression need not to be “prohibited, punished, or prevented” unless the particular lawlessness has the potential of leading to “imminent lawless action” (KERSCH, 2003) There have been uneven application of the standard by future judges because of uncertainty regarding when and how to apply the standard’s “immediate” and “imminent” language. The Court has adjusted its interpretation of free expression basing on present political situation and public opinion. During times of supposed national crisis, the Court has been often adopted a more conservative elucidation and restricted speech (Cornwell, 2004). The court would lean more the left and rule more in favor of free speech as the crisis subsides. I think the standards are satisfactory.
Question 2
In New York Times v. United States (1971), the Court held that the Nixon Administration restrict both the New York Times and Washington Post from taking punitive action against the Pentagon Papers, and that no information short of that which posed danger to national security could be restricted to be disseminated in the public forum (Cornwell, 2004). This ruling reinforced the notion that the free press had a right and obligation to scrutinize the government. The Court issued per curiam opinion denouncing prior restraints and strengthening the freedom of the press provided under the First Amendment. The Court restricts First Amendment protection of speech for Obscenity and Child Pornography as in Rotrh v. United States (1957). Broadcast Media receives less protection under First Amendment protection as espoused in cases Red Lion Broadcasting v. FCC (1969), FCC v. Pacifica (1978), and Hazelwood School District v. Kuhlmeier (1988). For prior restraint, in Near v. Minnesota (1931), the court reject prior restraints on publication observing the law targeted at publishers of “scandalous” or “malicious” newspapers was in violation the First Amendment (POWERS, 2011).
References:
KERSCH, K. I. (2003). Freedom of speech: rights and liberties under the law. Santa Barbara, Calif. [u.a.], ABC-CLIO.
CORNWELL, N. C. (2004). Freedom of the press: rights and liberties under the law. Santa Barbara, Calif, ABC-CLIO.
POWERS, E. (2011). Freedom of speech: the history of an idea. Lewisburg, Pa, Bucknell University Press.
