Page 188 - Battleground The Media Volume 1 and 2

Government Censorsh p and Freedom of Speech | 1

1969—Brandenberg v. Ohio: The Supreme Court draws a distinction between speech that
advocates ideas (protected by the First Amendment) and speech that incites violence
(not protected), establishing the “incitement standard.”
1971—Pentagon Papers (New York Times v. U.S.; U.S. v. Washington Post ): Federal gov-
ernment tries to stop the publication of Pentagon Papers. The courts rule in favor of
the newspapers.
1972—Gooding v. Wilson: Establishes the definition of “fighting words,” which may be
prohibited if likely to create an immediate breach of the peace.
1974—Miller v. California, establishing modern definition of obscenity, and excluding it
from First Amendment protection.
1978—FCC v. Pacifica: Supreme Court upholds the constitutionality of the FCC’s decision
to punish broadcasters who air language that is “obscene, indecent or profane.” Es-
tablishes the “safe harbor laws.”
2001—Patriot Act adopted by Congress, following the incidents of September 11, 2001,
permitting the government to monitor electronic communication, and empowering
law enforcement officials to demand records from bookstores and libraries, to identify
who is reading “suspect” material. This act was later amended to allow the govern-
ment to track an individual’s Web-surfing habits and search terms.
2004—Congress empowers the FCC to greatly increase fines imposed upon broadcasters
for the violation of indecency standards.

haTE sPEECh
One of the most challenging issues facing any country committed to free-
dom of expression is that of hate speech. In a nation theoretically committed
to equality, how do we handle messages that challenge that basic premise?
Does freedom of expression extend to those who speak messages of hate? How
should we handle extremists who call for the oppression, deportation—or
extermination—of specific groups of people? Initially, it might seem like a sim-
ple issue: prejudice and hatred are wrong, killing is wrong, so, speech advocat-
ing such things is wrong too. However, banning hate speech doesn’t eliminate
racism or hatred. In fact, the censorship of this form of communication may in-
advertently fan the flames of intolerance, because once an idea gains the status
of being “taboo” it often becomes more attractive, at least to some.
The issue of hate speech has generated endless debate in our nation. Many
fascinating cases have gone before the courts: Does the Klu Klux Klan have the
right to march in the streets? Can the Confederate flag be displayed in pub-
lic buildings? Can universities enforce rules banning hate speech from their
campuses? Ultimately, the Supreme Court has ruled that our rights to freely
express our views do have limits, particularly if the speech in question can be
seen as posing a direct threat to physical safety. The Court created a category of
speech called “fighting words,” which they defined as “words spoken in a face-
to-face confrontation that are likely to create an immediate breach of the peace.”