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Freedom of Speech & Association

Freedom of Speech & Association. Professor Wells TR 2:00-3:15 http://law.missouri.edu/wells/speech/. The First Amendment.

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Freedom of Speech & Association

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  1. Freedom of Speech & Association Professor Wells TR 2:00-3:15 http://law.missouri.edu/wells/speech/

  2. The First Amendment • “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.” • What do these words mean?

  3. The Stolen Valor Act, 18 USC § 704(b) • No person may falsely represent themselves “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b) • Punishment: Fine or up to six months in jail. Penalty enhancement up to a year in jail if one falsely represents receipt of the Medal of Honor. • SCT will decide whether the Act violates the First Amendment this term – oral argument is scheduled for 2.22.12

  4. Is there any value to the speech punished by Stolen Valor Act? • SVA punishes intentional lies about one’s personal credentials. • Do such falsehoods have any value? Do they contribute to public debate in any way? • Do they contribute to search for truth in the marketplace of ideas? • E.g., Protect expression to promote discovery of truth • Do they aid in democratic self-governance? • E.g., Protect expression to facilitate operation of democratic process and promote public welfare • Do they promote individual autonomy? • E.g., Protect expression to allow people to develop their faculties

  5. What free speech concerns does the Stolen Valor Act raise? • What does our history with seditious libel suggest about this controversy? Or is it even relevant? • What is the government’s interest in punishing lies about military awards and how does it relate to seditious libel? How could that interest be problematic? • Is it the government’s interest that concerns us or the manner in which they are protecting it that might concern us? What possible abuses can arise?

  6. Nebulous standards, line-drawing & the regulation of “dangerous speech” • Government officials must justify any regulation of speech in order to survive 1st amendment scrutiny. • Some justifications appear more than others – i.e., danger to government institutions or initiatives, danger to public safety, etc. • Government officials will continue to regulate “dangerous” speech. • While most people agree that truly dangerous speech should be regulated, the critical issue is where and how to effectively distinguish between truly dangerous speech and speech that is merely disliked. • The Supreme Court struggles with this line drawing problem throughout many of its cases – especially those establishing low value categories.

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