The First Amendment at its simplest definition protects the freedoms of speech, religion, assembly, press, and the freedom to petition. In our media studies curriculum, the policies of most concern are often in regard to the freedom of speech the freedom of the press and their freedom from government interference. Many often fail to acknowledge that the First Amendment only protects an individual from the punishment of the government for suppressing speech, all other institutions are not obliged to comply. Although the definition of the First Amendment states prohibiting “abridging of the freedom of speech, or of the press”, some speech is more free than others. The freedom of expression is officially halted or punished for : endangering national security, incites a riot, contains “fighting words”, or infringes a copyright, or if damages a reputation or invades privacy. However, there are many inconsistent values to the First Amendment that have caused abridgment and intricate regulation.
Obscenity in the United States is illegal, and hence not protected by the First Amendment. Obscenity is considered the most graphic form of sexual expression and is so offensive and lacking social value that it is denied First Amendment protection (middleton and lee ch 9). However in the 1973 case of Miller v. California, the standard for obscenity was reworked to give protections to publishers. Martin Miller was prosecuted for distributing advertisements to the public for his books of highly sexual subject matter. Although the court held the standard of obscenity as not protected by the First Amendment, the murky definition of obscenity proposed a possibility of compromising Miller’s freedom of speech. Obscenity was further defined by Chief Justice of the Supreme through a three part test for the state to conform to. To be considered obscene, the Miller Test’s three prongs required: the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; Materials must depict or describe sexual concept in a ‘patently offensive way’ ; and, the work, taken as a whole must lack serious literary, artistic, political or scientific value. (oyez) Consequently, this test makes it difficult to charge someone for obscenity, outside of child pornography.
The First Amendment protects commercial speech but to a lesser degree than it protects political expression. The Supreme Court has claimed that the hardiness and verifiability of commercial speech justify lesser constitutional protections on advertising (middleton and lee ch 8). Commercial speech has been defined as speech which promotes at least some type of commerce (cornell law). There is not as much of a chilling effect of regulating commercial speech. In the 1976 case Board of Pharmacy v Virginia Citizens Consumer Council, the Supreme Court recognized advertising as a form of commercial speech, therefore gaining protection under the First Amendment. This precedent case came from the dispute between consumers and pharmacists, as consumers wanted pharmacies to advertise drug prices. This was illegal in Virginia in fear of degrading the pharmacists profession to that of retail. However, the court ruled that companies had the First Amendment right to advertise, and the consumers had the right to hear their speech. This precedent was controversially put in effect in 2012 in R.J. Reynolds Tobacco Co vs. Food and Drug Administration. The Tobacco Control Act required the FDA to require tobacco companies to place graphic images on their products to warn the dangers of smoking. The tobacco companies filed a suit against the FDA, claiming this enforcement violated their First Amendment rights and the message of smoking being bad for you was ideological (publichealthlaw). The Supreme Court followed precedent of the 1976 and ruled in favor of the tobacco companies. The court was criticized as they used strict scrutiny for commercial speech, which requires a less demanding test. This case raises the issue of the government not having the ability to protect consumers from a health crisis due to the rights given by The First Amendment (Epps).
The Espionage Act, originally effected to criminalize opposition against World War I, can undermine the function of the First Amendment that serves to check the power of government and public officials (the guardian). These First Amendment concerns have been raised in the international scandal of former CIA employee Edward Snowden. Snowden worked for the NSA and leaked government documents to British newspaper, “The Guardian” in 2013. In his exposé he exposed the PRISM program run by the NSA. PRISM is a code name for a surveillance program that taps intot he servers of major US internet companies (Ali). Snowden was charged with three felonies, two of them being under the century old Espionage Act for intentionally revealing secret national security information (the gaurdian). Members of society are split in regard to whether Snowden is a traitor or a hero. Although Snowden was practicing civil disobedience to disclose the faults of the government, his job title required him to sacrifice some of his First Amendment rights in order to protect the national security. However, Snowden saw PRISM and the NSA’s surveillance programs to be a threat to democracy and exercised his First Amendment right to speak against the government and expose corruption. Snowden is indentified as a whistleblower by government officials, but it is whistleblowers that inform the public and the chilling effect of Snowden’s prosecution compromises the values that the freedom of speech and the democratic society America established itself off of.
As the First Amendment is key to American democracy, it is practically impossible to pass legislation to limit speech in the United States. However, due to the recent events in our society, such as Charlottesville’s “Unite the Right” rally, hate speech should be better regulated in America. Alexander Meiklejohn’s absolutist view of the First Amendment, where there are no grey areas, and that all speech should be free and “should never defer to other social values” (mtsu.edu). Professor Ali explained that this ideaology works in theory but not in practice as it can lead to effects resembling mass hysteria (Ali week 2 class 1). The United States would benefit from modeling legislation after the European Convention of Human Rights. While the entity protects free speech, it acknowledges that it is not absolute and ‘must be blanches against other important valued, such as human diginity” (the atlantic). As Mila Versteeg explains in her article “What Europe Can Teach America About Free Speech”, there is a “subsitution effect” happening in American society in response to the protection of hate speech. The citizen must holds the personal responsibility to assert politically correctness in society, rather than the government doing so, as is carried out in the European Union. The fear of suppressed speech resulting in radical solutions is an inverse defense perpetuating intolerant attitudes in America. In complete opposition to the absolutist theory, when evaluating hate speech, limitations should balance the speech against other social values.