First Amendment Limitations

The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the ‘Bill of Rights,’ were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into th e fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation

Justice Brown, Robertson v Baldwin, 165 US 275 (1897)

As Justice Brown stated in 1897, freedom of the press is a qualified right. That is, exceptions exist which limit or proscribed altogether the liberty of the press. The Supreme Court has handed down a series of precedents over the years, describing under what circumstances the press’ first amendment rights may be limited. The two most common tests are clear and present danger, and the balancing test. In opposition to these two interpretations is the absolutist stance that press freedom is an unequivocal right.

Clear and Present Danger

During World War I, Charles Schenck published and mailed circulars to draftees, urging them to peaceably call for the repeal of the Conscription Act. He was tried for “conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917″ (249 US 47). The Supreme Court found that, under the circumstances, the government had the right to convict Schenck for publishing and distributing material contrary to the needs of the government.

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic… The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Schenck v US, 249 US 47 (1919)

The question became whether or not a publication represented a threat to the well-being of the country. This test became common in the courts until the later balancing test, but is still occasionally seen today.

Balancing Test

Against the backdrop of the Communist scare of the mid 1900s, the Taft-Hartley National Labor-Management Relations Act of 1947 prevented individuals from becoming union officers unless they signed affidavits to the effect that they were not, in fact, Communists. Some unions refused to observe this regulation, including the American Communications Association of the Congress of Industrial Organizations. The retaliation, the National Labor Relations Board attempted to hold representative elections excluding the American Communications Association. The American Communications Associations petitioned for a court injunction against the elections, and the case made its way to the US Supreme Court. The Communications Association argued that the Taft-Hartley Act violated first amendment rights (freedom of belief and speech). Rather than using the clear and present danger standard, the court applied a “balancing” test.

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.

Communications Assn v Douds, 339 US 382 (1950)

Although later cases eventually struck down the section of the Taft-Hartley act requiring the affidavits, the ruling introduced a new standard, the balancing test. The balancing test weighed the merits of conflicting interests when determining first amendment freedoms.

Absolutist

Although there are several other interpretive frameworks for first amendment rights, one in direct opposition to the above two was succinctly stated by Justice Black in Bates v Little Rock.

First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.

Justice Black, Bates v Little Rock, 261 US 516 (1960)

Justice Black believed that First Amendment rights were absolute rights and should be held inviolable. An individual did not qualify for these rights, he or she had them as guarantees directly from the Bill of Rights. Although not necessarily common in Supreme Court rulings, the absolutist view nevertheless couches First Amendment rights in the same definitive terms used in the Bill of Rights.

Other Limitations

Access

In 1975, a prisoner committed suicide at the Alameda County Jail in Santa Rita, California. A psychiatrist reported that the suicide was due to the terrible conditions of ‘Little Greystone,’ the portion of the jail where the prisoner was kept. KQED asserted that it had a right to access the jail protected under the First Amendment. Sheriff Houchins, who supervised the jail, denied KQED access. KQED filed suit against the jail. The Supreme Court

concluded that neither the First Amendment nor the Fourteenth Amendment provides a right of access to government information or sources of information within the government’s control. The news media have no constitutional right of access to the county jail over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting

Houchins v KQED, 438 US 1 (1978)

In other words, the First Amendment only guarantees a right to publish, not to gather information. However, access to information is critical to fueling public discussion, as without information, the discussion cannot be well-informed. Some legislation is in place to grant greater media access to government documents, including the Freedom of Information Act.

Reporter’s Privilege

Reporters may be forced to reveal their confidential sources. Generally, if a subpoenaing party can prove that they have exhausted all other avenues of discovery, and the information the source could produce would prove important to a given case, a judge may order a reporter to reveal their sources. In addition, reporter’s privilege generally applies only when a reporter can prove that, from the beginning, he or she was gathering information for public dissemination.

ISP Service

Although the First Amendment may guarantee an individual the right to publish his or her own work, it does not force a private party to publish it on your behalf. Blogs have an interesting publishing mechanism, wherein a single copy may reach readers worldwide. But ISPs may take down that single copy if they so choose, effectively keeping anyone from reading it.