Running head: FREEDOM OF SPEECH

1
Robert Cupach

Freedom of Speech
Kent State University

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1.

Provocation to anger is language used that causes a disturbance of the peace. To reach the

level of fighting words on must be provoked into the action of anger. This started with the
Cantwell case in (1938). A Jehovahs witness, Newton Cantwell, took him and his two sons door
to door and began talking to people in a Catholic neighborhood about their own religion. This
caused an uproar among the community. The Cantwell family was arrested and convicted of
disturbing the peace. The family appealed this case later being set free because the judge ruled
that this situation did not amount to a breach of peace. This case would set up many others that
relate to provocation of anger and fighting words. The term fighting words was first
introduced in the case of Chaplinsky v. New Hampshire (1942). Walter Chaplinsky was a
Jehovahs Witness who was convicted for violating New Hampshire law that prohibits speaking
offensively, derisive or annoying word to any other person who is lawfully in any street or public
place. (Tedford & Herbeck). Chaplinsky was in an altercation with a city marshal and at this
point Chaplinsky allegedly said to the marshal that he was a God damned racketeer and a
damned Fascist and the whole government of Rochester are Fascists or agents of Fascists. The
marshal did not take too kindly to these words and arrested Chaplinsky. Justice Murphy, the
Supreme Court Justice at the time, backed the conviction with various different points. He first
stated that each individual has their own right to free speech, but it is not always absolute.
Depending on the circumstances, free speech can be limited to the individual. Freedom of speech
can be broken down into two categories. The first being worthwhile speech. This is the
expression has social value as a step towards the truth (Tedford & Herbeck). Even though
Chaplinsky could have been correct with his opinion, the statement failed to be considered
worthwhile speech. The other level of free speech is worthless speech. This is any expression

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that has little, if any social value as a step towards truth (Tedford & Herbeck). Although the
First Amendment protects free speech, some expressions are still considered obscene or vulgar.
Justice Murphy also gave his own point of view on fighting words. He classified these as
words that either inflict injury or tend to incite an immediate breach of peace, and in this case felt
Chaplinsky fell under this category. Just seven years later a similar case hit the courts.
Terminiello v. Chicago (1949) was another landmark case in provocation of anger and fighting
words. Terminiello was an outspoken anti-Semitic, racist Catholic priest from Alabama who
was suspended from his own church and invited to Chicago. The auditorium where the speech
was being conducted gained a ton of attention. Various items were thrown at the auditorium
which triggered Terminiello to call them slimy scum and dirty kikes. Terminiello was
arrested under conditions that stated all persons who shall make, aid, countenance, or assist in
making any improper noise, riot, disturbance, breach of the peace or diversion tending to a
breach of peace. This conviction was later overturned by Justice Douglas stating that the jury
was overbroad in the interpretation of a disorderly conduct law and could not be sustained
because the expansive interpretation reached protected speech (Tedford & Herbeck). The last
big case pertaining to the provocation of anger and fighting words was in the instance of
Cohen v. California (1971). Paul Robert Cohen was a man arrested in Los Angeles for wearing a
jacket that said Fuck the Draft. The jacket was clearly visible to the public eye. He was
arrested for violating California law that prohibits maliciously and willfully disturbing the peace
or quiet of any neighborhood or person by offensive conduct (Tedford & Herbeck). Facts stated
that Cohen was not being a loud disturbance and that no one else threatened him because of his
jacket. However the court found him guilty and sentenced him to thirty days in jail. The
conviction was later reversed by Justice Harlan under the the facts that: the government is not

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capable of setting forth a clear principle by which certain words will be allowed and others
disallowed, language such as that used by Cohen has important emotive content, and finally
forbidding certain words creates a serious risk that protected ideas will be suppressed (Tedford &
Herbeck). There is a very long line of cases that deal with provocation of anger and fighting
words. There cannot be one without the other. To be considered fighting words it must have
angered the person enough to offend them or provoke them.
2.

Commercial speech has been defined by the Supreme Court as speech where the speaker

is more likely to be engaged in commerce, where the intended audience is commercial or actual
or potential consumers, and where the content of the message is commercial in character
(Commercial Speech). The courts have been very hesitant over the history of the United States to
include protection to commercial expression in the First Amendment. There is two reasons for
this. The first being there exists a profound distrust of commercial messages because of the
numerous examples of exaggeration and outright falsehood exposed over the years (Tedford &
Herbeck). The second reason is several influential First Amendment scholars have argued that
commercial speech is less deserving of constitutional protection than political speech because
mere advertising is not essential to self-government (Tedford & Herbeck). One example of
regulating commercial speech is a case that involved Nike Inc v. Kasky (2003). In 2003 Nike
shoe company was under a possible lawsuit for false advertising about its labor practices seven
years prior. The courts sided with Kasky stating Speech is commercial in its content if it is
likely to influence consumers in their commercial decisions, the California ruling stated. For a
significant segment of the buying public, labor practices do matter in making consumer choices
(First Amendment Center). Kasky stated that Nike and its labor practices fit the description of
Commercial Advertising just as much as any shoe line that the advertise. Because Nike has a

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right to Commercial Speech, I believe that because Nike made false statements about their labor
ethics, that they are in violation of Commercial Speech and that they should be convicted under
the fact even though the product itself may not be false advertisement, the way the company is
ran contradicts the way the company is perceived to do business. The Federal Trade
Commission has some basic rules for Commercial Advertising. The Federal Trade Commision or
FTC is an independent federal agency whose main goals are to protect consumers and to ensure a
strong competitive market by enforcing a variety of consumer protection and antitrust laws.
These laws guard against harmful business practices and protect the market from anticompetitive practices such as large mergers and price-fixing conspiracies (Federal Trade). The
FTC originally had three three basic rules. These are consumer characteristics, probability of
deception, and significance of the deception. Consumer characteristics states that the audience is
considered to be the reasonable consumer a standard similar to the reasonable person rule in
tort law (Tedford & Herbeck). The second rule, probability of deception, refers to the likelihood
that the advertisement taken as a whole will actually deceive the reasonable consumer (Tedford
& Herbeck). The last basic rule is the significance of the deception. This states that material must
be significant enough to actually influence the reasonable consumers decision about whether to
purchase the product or service being offered (Tedford & Herbeck). These rules and regulations
eventually became outdated and the courts developed a new commercial speech doctrine called
the Four Part Test of Commercial Speech. This test consists of message content, government
interest, advancement of the government interest, and reasonable fit between ends and means.
There are a few important cases that go along with Commercial Speech. The first being Valentine
v. Chrestensen. F. J. Chrestensen attempted to evade a New York City ordinance forbidding the
distribution of commercial handbills, prepared a two faced handbill, one side with a commercial

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message and the other a political protest. The authorities said the leaflet was commercial and
warned against the distribution on the streets (Tedford & Herbeck). Chrestensen did not favor
this ruling and decided to challenge it in federal court. The Supreme court ruled that it was clear
the streets could be used for the exercise of the freedom of communicating information and
disseminating opinion, it was equally clear that the Constitution granted no privilege to purely
commercial advertising (Tedford & Herbeck). For the first time in history Commercial Speech
could be regulated by the act of the legislation without violating the First Amendment. The other
major case in Commercial Speech is Bigelow v. Virginia (1975). Jeffrey C. Bigelow was
managing editor for the Virginia Weekly and was charged with,tried for, and convicted of a
misdemeanor under state law that made it illegal to advertise abortion service information
(Tedford & Herbeck). Bigelow appealed this case and his conviction was reversed. The United
States Supreme Court ruled that the advertisement that had created the controversy contained
factual material of clear public interest(Tedford & Herbeck). This case made it clear that
truthful advertising that had interest to the general public falls under the First Amendment
protection.
3. Campus Hate Speech has been a topic of debate since the late 1980s. Campus Hate Speech
began at the University of Connecticut where eight Asian Americans were harassed by a group of
football players for nearly an hour straight. The used terms such as Oriental faggots and also
wanted to fight these students (Tedford & Herbeck). Coexisting with this issue, in 1989 at
Arizona State University, a group of white fraternity brothers harassed an African American
student walking passed calling him a Coon, Nigger, and Porchmonkey. Eventually a fight
broke out and the police were summoned. These were some of the earlier cases of Campus Hate
Speech, but did not go to trial. There were certain regulations set up to develop broad rules

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against such speech. The Universities of Connecticut and Pennsylvania both established rules
that prohibited language that is derogatory, stigmatizes individuals, or creates an
intimidating or offensive environment (Tedford & Herbeck). The University of Michigan also
developed a regulation called the Policy of Discrimination and Discriminatory Harassment of
Students in the University Environment. It stated that any behavior, verbal or physical, that
stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual
orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran
status (Tedford & Herbeck). This policy was challenged in federal court by a Michigan graduate
student who said that the rule would prevent free academic discussion of a variety of
controversial theories. The courts ruled for the graduate student declaring the policy
unconstitutional both on the First Amendment grounds and on the due process grounds of
vagueness. The American Civil Liberties Union or ACLU formulated their own position of free
speech on campus. The ACLU recognizes the problem of racism, sexism, and homophobic bias
on a campus and by proposing that, instead of restricting speech, colleges should take
constructive steps to combat the problem (Tedford & Herbeck). The ACLU opposes all
regulations that interfere with freedom of debate of feelings amongst the faculty and students.
The ACLU does however state that it is not opposed to codes that aim to restrict acts of
intimidation and invasion of privacy. They do not want to restrict students on campus of free
speech, however they do want to make sure that the language used is not offensive in any way,
shape, or form. I believe that students should be allowed free speech on campus, but it does need
to be within reason or worthwhile speech. There is already too much discrimination in the world
for students to feel like they have a right to publicly bash another person. Peaceful protesting and

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constructing thoughts and ideas that have actual meaning is what college campuses should be
promoting.
4. I believe the Appellate court would rule against The Executive Branch and the federal district
courts and allow access to the public. When it comes to national security issues, the courts have
the right to close off any press to the public to prevent any prejudicial publicity concerning a
controversy over whether statements given to the police by the defendants were voluntary
(Tedford & Herbeck). This is because too much press coverage may cause an uproar in the
courtroom or a circus like atmosphere which may interfere with the case. In the case of
Gannett v. DePasquale the courts had a decision to make about opening the courts to the public.
Judge DePasquale ruled to close the preliminary hearing in a murder case. DePasquale believed
that any access to the public in the trial would dilute the jury pool. Court Justice Potter Stewart
agreed with DePasquale stating The Constitution nowhere mentions any right of access to a
criminal trial on the part of the public; its guarantee is personal to the accused (Tedford &
Herbeck). Despite only being for the preliminary, other judges wanted to also close trials for
main hearings also. This caused a stir among many media outlets and they felt had the right
within their First Amendment to attend the trials. The case of Richmond Newspaper v. Virginia
changed the outlook on how the courts should go about handling freedom to the press or media
in a trial. The Richmond case involved a murder trial that was reaching its fourth trial and had
been denied to the public. The Virginia trial court was granted closure for the case, however this
was challenged by the Appellate Court under the concept of Freedom of the Press in the courts
(FindLaw). The judge later denied the motion stating if he felt that the defendant's rights were
infringed in any way and others' rights were not overridden he was inclined to order closure, and
ordered the trial to continue with the press and public excluded (FindLaw). The defendant was

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eventually found not guilty by the courts and the case was dismissed. In 1980 the courts
announced in light of the Richmond Case that trials should be open to the public (Tedford &
Herbeck). Chief Justice Burger, who had the leading opinion in the case, stated the Gannett
decision was not being altered for it concerned preliminary hearings not the actual trial. The
Chief Justice went on to reference the First Amendment and how he felt it applied to the
situation. He states that, In guaranteeing freedoms such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials so as to give meaning
to those explicit guarantees and that Free Speech carries with it the freedom of those to listen
to(Tedford & Herbeck). Following this case was a few others that involved openness to the
courtroom such as Global Newspaper v. Superior Court and Press-Enterprise Co. v. Superior
Court of California, Riverside County. Both cases were involving openness to the courts and
both rejected the closings of each case. Finally in 1984 the High Court ruled that both the First
and Sixth Amendment would be in support of an open courtroom when it had originally just been
the First Amendment (Tedford & Herbeck). All these cases have been decided to clear up any
misunderstandings that may have happened in the Gannett case. When it comes to access to the
courtrooms by the public the United States Supreme Court has determined that Americas
courtrooms are presumed open to the public and the press unless the trial judge presents
convincing evidence to prove that closure is essential to a fair trial (Tedford & Herbeck). In the
case of the terrorist group leader, I believe the Appellate court would rule with the media group
and have the trial opened to the public. In violation of the First Amendment, all courts must be
opened unless the trial judge feels an absolute need to close it due to any conflictions or
influences that may sway the jurors rulings.

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5. Prior restraint means to stop a message before it is commercial (Tedford & Herbeck). Since
the 1970s there has been three issues of debate about prior restraint. The first being the
unauthorized publication of military secrets in 1971 or the Pentagon Papers case. The Pentagon
Papers case started when war opponent Daniel Ellsberg, a scientist who had worked for the
government on a secret history of the Vietnam conflict, gave copies to the New York Times and
Washington Post (Tedford & Herbeck). Once the newspapers started printing copies of History
of the United States Decision Making Process on Vietnam Policy, the Justice Department order
a restraint on anymore publications of the article. The district court in Washington rejected the
request for restraint on the publication. The Courts eventually voted against the restraining order
and permitted the continued publication. Four of the jurors ruled that their arguments to agree
that prior restraint was permissible in certain circumstances, but not in this case. The second
debate over prior restraint is the attempted publication of an article on how to make an H-bomb
in 1979 or the Progressive Case. In 1979 a political journal called The Progressive announced
they would have an April issue that contained an article on how to create ones own H-bomb.
The government was not too fond of this idea and ordered to stop publication on national
security grounds. The Progressive quickly appealed the prior restraint order to the court of
appeals and even to the Supreme Court if needed. After much support from various journalists,
the government quit and dropped the case (Tedford & Herbeck). The third and final debate of
prior restraint talks about the federal government efforts to prevent ex-CIA agents from
publishing books about their secret work without advance permission. Two cases were involved
in this debate over prior restraint, Marchetti (1972) and Snepp (1980). A man by the name of
Victor Marchetti, former CIA, announced that he wanted to write a book titled The CIA and the
Cult of Intelligence. The courts allowed the government to delete several parts from the book

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prior to publication. The book was eventually published, but had many blank spaces where the
information was taken out (Tedford & Herbeck). The other case, Snepp v. united States,
consisted of a man named Frank Snepp who published a book concerning the CIAs activities in
South Vietnam called Decent Interval. The government sued Snepp for breach of contract,
injunction to prohibit Snepp from future publication, and the establishment of a constructive trust
for the governments benefit into which all profits from the book were channeled (Tedford &
Herbeck). In 1980 Snepp had to start paying back the government for all of his earnings.
Although prior restraint had not occurred, the decision was made to stop all those who might
want to publish their own books. All government secrecy contracts are binding despite the First
Amendment. The WikiLeaks case is one of the most recent and controversial cases regarding a
man named Edward Snowden who leaked information from the NSA to a mainstream media
program (Kelly). Snowden leaked information about the United States and its possible details
about global surveillance. After a span of time of trying to get away from the whole situation,
Snowden was finally brought up on criminal charges. Snowden was charged with theft of
government property and violation of the United States Espionage Act which prohibits
interference with military operations or recruitment (Kelly). Snowden believes that the
information that he leaked could have been beneficial and that he was not given a fair chance in
front of the jury to make his case. I believe the Supreme Court judgments towards all these cases
should have been for the government. Although people have the right to free speech, most of
these cases had people who breached a signed contract with the CIA about revealing secret
information. If these contracts were never signed, then there would be a strong case for the
defendants in each case.

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6. Our right to attend trials is very important. The case between Richmond Newspapers v.
Virginia. Richmond Newspapers raised issues about First Amendment rights and its openness of
a public trial. The Supreme Court addressed the question of the publics right to attend a trial a
year after the Gannett decision. Gannett was on trial for murder and the case was on leave. Two
concerns about the Richmond case have been noted. The first, by not reversing the Gannett
decision, which permitted the closing of a rule that access to a pretrial hearing could be denied if
the judge believed that the subsequent publicity might prejudice the jury pool leading to unfair
trial and also asserts only a qualified right of the public to access criminal trials(Tedford &
Herbeck). It is stated that any judge who closes a trial is assumed to have done it as a last resort
for fair trial. We also have a right to acquire documents from federal agencies and attend
meetings of these agencies. The Sunshine Act was a law put in place that requires open meetings
to the public throughout the fifty states. Meetings can be closed for various reasons such as
problems with personnel matters or if it has sensitive matters that may damage an individual's
reputation. The difference our right to attend trials can be cut off due to the magnitude of the
situation while our right to acquire documents is a lot more open. The difference is significant
because certain situations may call for the First Amendment right to be used in any of the various
cases.
7. The appropriate and current test to determine if a magazine is obscene or not is a test called
the Miller test. The Miller test was developed in 1973, but did not just spring up out of nowhere.
There has been many other prior obscenity laws and tests that helped the Miller test develop to
where it is today. The oldest act against obscenity dates all the back to 1857. The Obscene
Publications Act of 1857 or Lord Campbells Act was released in 1857 in Great Britain and
Ireland and was concerned with obscenity and for the first time in history made the sale of

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obscene material a statutory offence, giving the courts power to seize and dispose of any
offending material (Obscene). About ten years after the Obscene Publications Act was put into
place, a man named Henry Scott was arrested for violating the act by distributing an immoral
publication titled The Confessional Unmasked (Tedford & Herbeck). The pamphlet was
considered anti-Catholic, however, a man named Benjamin Hicklin opposed this claiming that
the pamphlet was not legally obscene and that he believed the pamphlet should be continued to
be distributed. The courts did not agree with Hicklin and confirmed that the pamphlet was
obscene. This case lead to the development of the Hicklin Rule and the application of the rule in
various cases. The Hicklin Rule states the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences, and into whose hands a publication of this sort may fall (Tedford &
Herbeck). The Hicklin rule was around for about 75 years until revisions were made. In 1933
Judge John Woolsey made three revisions to the Hicklin Rule. The first stated the work must be
judged as a whole not as bits and pieces of the work, the second stated that the work must stir
sexual impulses or lead to sexually impure thoughts and lastly, the revision stated that the
sexual stirrings must be judged according to a person with average sex instincts (Tedford &
Herbeck). Eventually the Hicklin Rule faded away and a new test was created for obscenity cases
in the courts. The case of Roth v. United States (1957) brought about a new way the courts
wanted to test obscenity. Samuel Roth was found guilty in violation of Comstock Act of 1873 for
mailing obscene advertising (Tedford & Herbeck). The judge in the decision, Justice Brennan,
did recognize the fact that obscenity was historically associated with religious offenses, but the
material being mailed was considered worthless expression of ideas and sexually lewd. There
were multiple cases that used the Roth test to determine obscenity or not. One of the cases,

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Memoirs v. Massachusetts (1966), involved the novel Fanny Hill and how the courts were trying
to get censorship over the novel. The courts later ruled that the novel was protected in the
Constitution because it did contain some literary value (Tedford & Herbeck). Another case that
consisted of the Roth Test was the case of Redrup v. New York (1967). Robert Redrup was a man
selling non explicit girlie magazines on the streets of New York and sold one to a police officer
not in uniform (Tedford & Herbeck). He was convicted by the courts, however, the convictions
were reversed because the judges stated there was no evidence of sale to juveniles or pandering.
One final case that lead to a revision of the Roth Test was Stanley v. Georgia (1968). Stanley was
convicted for having 8mm stag films in his home for private use, but the Supreme Court
reversed the decision (Tedford & Herbeck). The judges stated that the Georgia law was an
invasion of privacy. After much debate over the concept of obscenity, we are brought to the case
of Miller v. California (1973). Marvin Miller was convicted by a jury for disseminating
advertising brochures containing explicit sexual illustrations (Tedford & Herbeck). The judges
ruled that obscenity was not protected by the First Amendment and that the Roth test was now
obsolete. Miller appealed to many different courts and with a 5-4 vote, the courts vacated the
conviction. The Miller test was thus born because of this case. The Miller Test consists of three
parts and is also referred to as the Three Prong Obscenity Test. The first rule states whether the
average person, applying contemporary standards of the state or local community, would find
that work, taken as a whole, appeals to the prurient interest. The second section says whether
the work depicts or describes in a patently offensive way sexual conduct specifically defined by
the applicable state law. Lastly the work lacks serious literary, artistic, political, or scientific
value also referred to as the SLAPS test (Tedford & Herbeck). The Miller Test was introduced
in 1973 and is still the standard used today.

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References
Commercial Speech. (n.d.). Retrieved April 1, 2015, from
https://www.law.cornell.edu/wex/commercial_speech
Federal Trade Commission (FTC) Definition | Investopedia. (2005, August 4). Retrieved April 1,
2015, from http://www.investopedia.com/terms/f/ftc.asp
FindLaw | Cases and Codes. (n.d.). Retrieved April 6, 2015, from
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=448&invol=555
First Amendment Center. (n.d.). Retrieved April 1, 2015, from
http://www.firstamendmentcenter.org/supreme-court-agrees-to-consider-nikecommercial-speech-case
Kelley, M. (2014, January 4). Edward Snowden's Relationship With WikiLeaks Should Concern
Everyone. Retrieved April 1, 2015, from http://www.businessinsider.com/edwardsnowden-and-wikileaks-2014-1
Obscene Translation. (n.d.). Retrieved April 8, 2015, from
http://translation.babylon.com/english/Obscene Publications Act 1857