Tedford and Herbeck, Freedom of Speech in the United States, 6 ed.: Preface

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isbn:
9781891136214
2009
488 pages
paperback

IM:
9781891136221

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Freedom of Speech
in the
United States

sixth edition

Thomas L. Tedford
University of North Carolina, Greensboro

Dale A. Herbeck
Boston College

consulting editor: Franklyn S. Haiman

PREFACE

Freedom of Speech in the United States was written to provide students who have little or no legal background with a clearly organized, readable historical survey and up-to-date analysis of free speech issues and cases in the United States. An effort has been made to present this information clearly and to explain specialized terms so that the student, with the help of the book’s case summaries and glossary, can follow the fascinating stories and rich legal controversies that are an inherent part of the study of freedom of expression. Toward that end, the sixth edition has been thoroughly updated to reflect the latest free speech decisions of the U.S. Supreme Court, as well as current controversies such as those involving teaching “intelligent design” in schools, indecent broadcasting over the public airwaves, and file-sharing technology.

This text is intended for college and university courses that focus on the free speech clause of the First Amendment. Such courses are offered in many departments of communication, media studies, broadcasting, journalism, political science, and library science. These courses have titles such as “Freedom of Speech,” “Freedom of Expression,” “Free Speech and Ethics,” “Media Law,” “Communication Law,” “Legal Issues in Communication,” and “Intellectual Freedom and Censorship.”

The book provides a liberal arts perspective on free speech issues by emphasizing historical and theoretical developments. For example, Chapters 1 and 2 survey the development of the idea of freedom of expression in Western culture. The chapters that follow discuss the important subjects of sedition; obscenity; hate speech restrictions on time, place, and manner;, and constraints in institutional settings. These chapters also cover topics essential for those who need a practical understanding of communication law, as illustrated by chapters on defamation and privacy, commercial expression, prior restraint, free press and fair trial, copyright, broadcasting, and freedom of speech on the Internet. Chapter 15 summarizes the reasons for freedom of speech as well as the free speech theories of six leading First Amendment Scholars, ranging from Zechariah Chafee, Jr. (1941) to Robert C. Post (1995).

FEATURES OF THE BOOK

While the book has been carefully updated, the features that distinguished previous editions remain:

The book offers the historical perspective required to appreciate current and ongoing controversies involving freedom of speech. Following the gradual evolution of the Free Speech Clause of the First Amendment providEs a unique perspective on both the freedom of speech and the necessary limitations on that freedom.
Each chapter begins with a clear outline of that chapter’s contents. Summaries for the major topics are used consistently within each chapter. Each chapter ends with a comprehensive summary.
Important Supreme Court decisions are summarized in special case boxes inset on the pages where the cases are discussed. Each summary explains the facts of the case, how the individual justices voted, and the larger significance of the decision.
Each chapter ends with exercises, topics for research papers and oral reports, and “Selected Readings,” a list of ten to twelve notable books that expand on themes set out in the chapter.
The appendixes provide short explanations, complete with diagrams, of the federal court system (including the basic citation system for legal materials); an explanation of the various tests employed by the courts in deciding free speech cases; and a glossary of terms (including 30 new items).
More than 30 historical and contemporary photos and illustrations, many new to this edition, help bring the subject alive for students.

FEATURES OF THE NEW EDITION

The sixth edition has been carefully updated to reflect recent developments.

Significant recent free speech decisions of the United States Supreme Court are reflected in the new edition, including important rulings on cases involving campaign finance laws, compelled commercial speech, student speech rights, the free speech rights of students and public employees, and file sharing.
Notable lower court decisions dealing with freedom of speech have also been included. The most consequential are federal appellate court rulings regarding student newspapers, media ownership, and the regulation of sexually explicit speech on the Internet.
Significant changes in federal law are discussed, including changes to longstanding rules adopted by the Federal Communications Commission and the first changes that have been made to the Freedom of Information Act in over a decade.
New laws adopted by local, state, and federal governments with free speech implications are also discussed in the new edition. Among these legislative initiatives are measures designed to restrict strategic lawsuits against public participation (SLAPP suits), a proposed federal shield law to protect journalists, and a variety of laws regulating speech on the Internet.
Building on an existing strength of the book, we have added new summaries for three landmark cases: Richmond Newspapers v. Virginia (Chapter 9), Hazelwood v. Kuhlmeier (Chapter 11), and Harper & Row Publishers, Inc. v. Nation Enterprises (Chapter 12).

PLAN OF THE BOOK

The text is divided into five main sections.

Part I, “Historical Developments,” places freedom of expression in the historical context.

Chapter 1, “Freedom of Speech: The English Heritage,” surveys the development of free speech ideas, with an emphasis on the relationship between English common law and the way that the framers of the Constitution understood freedom of speech.

Chapter 2, “Freedom of Speech in America to World War II,” traces the evolution of freedom of speech from the Colonial Era to the conclusion of World War I, when the United States Supreme Court became involved in deciding a wide variety of First Amendment cases.

Part II, “Controls upon the Content of Speech,” studies the evolution of freedom of speech from the end of World War I to the present. The chapters in this section begin with the four traditional libels of Anglo-American law: seditious libel, private libel, blasphemous libel, and obscene libel, then move on to contemporary controversies involving hate speech and efforts to restrict commercial speech.

Chapter 3, “Political Heresy: Sedition in the United States since 1917,” follows efforts to suppress seditious libel and other forms of political heresy from 1917 through the adoption of the USA PATRIOT Act following the events of September 11, 2001. Revisions include an expanded discussion of the PATRIOT Act and the First Amendment.

Chapter 4, “Defamation and Invasion of Privacy,” has an expanded discussion of strategic lawsuits against public participation (SLAPP suits) and a more thorough explanation of the defenses available in privacy actions.

Chapter 5, “Religio-Moral Heresy: From Blasphemy to Obscenity,” traces the evolution from strictures against blasphemy to obscenity and recent efforts to regulate child pornography. Updates address the controversy caused by attempts to teach “intelligent design” in public schools; a new effort by the U.S. Department of Justice to crack down on obscenity; and the Supreme Court decision in United States v. Williams (2008), which involves the PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act) of 2003.

Chapter 6, “Provocation to Anger and Words that Wound,” has been updated to reflect efforts to target hate speech on college campuses.

Chapter 7, “Commercial Speech,” explains the complex relationships between restrictions on commercial speech and the First Amendment. It includes new sections on compelled speech, including the Supreme Court decision in Johanns v. Livestock Marketing Association (2005), and charitable solicitation.

Part III, “Special Issues,” addresses problems of communication freedom that arise from situational factors.

Chapter 8, “Prior Restraint,” discusses an array of issues, including national security. A new section, “A Preview of Prior Restraints to Come,” summarizes implications of the Supreme Court decision in Tory v. Cochran (2005) and other emerging issues.

Chapter 9, “Special Problems of a Free Press,” discusses the tension between a free press and the right to a fair trial that is guaranteed by the Sixth Amendment, reporter’s privilege and shield laws, and access to government information and meetings. Updates include the controversies surrounding freelance journalist Josh Wolf, New York Times reporter Judith Miller, and computer scientist Wen Ho Lee. The chapter also accounts for the OPEN Government Act of 2007 (the acronym stands for the “Openness Promotes Effectiveness” in our National Government Act).

Chapter 10, “Constraints of Time, Place, and Manner,” covers a broad range of constraints in the public forum and on private property. This chapter also discusses “speech plus” and some of the special issues raised by free speech in the public forum. Updates include the Supreme Court’s latest decision in Scheidler v. National Organization for Women (2006).

Chapter 11, “Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons,” has been updated to include Morse v. Frederick (2007), a Supreme Court decision involving student speech rights; and City of San Diego v. Roe (2005) and Garcetti v. Ceballos (2006), two Supreme Court decisions dealing with the speech rights of public employees. Other revisions address lower court decisions involving the student press and the Supreme Court decision in Beard v. Banks (2006), involving prisoner’s access to reading material.

Part IV, “Technology and Freedom of Speech,” highlights those issues of communication freedom that emerge from technological developments.

Chapter 12, “Copyright,” sets out the general principles of copyright law (which grew out of print technology) and explores the complex relationship between the Intellectual Property Clause in the Constitution (Article 1, Section 8, Clause 8) and the Free Speech Clause of the First Amendment. The discussion of the tensions between copyright law and fair use has been expanded in this edition.

Chapter 13, “Broadcasting, Cable, and Access Theory,” also includes campaign finance, because most campaign spending is for advertising in the media. This chapter has been updated to reflect four new Supreme Court decisions: Randall v. Sorrell (2006), Wisconsin Right to Life v. Federal Election Commission (2006 and 2007), and Davis v. Federal Election Commission (2008). Other revisions discuss important lower court decisions involving changes to the FCC’s ownership rules, as well as changes to FCC rules governing broadcast indecency and fleeting expletives.

Chapter 14, “The Internet,” discusses three Supreme Court decisions regarding sexually explicit speech on the Internet, then extends many of the cases and controversies discussed elsewhere in the book into cyberspace. In the new edition, this chapter also discusses the Supreme Court’s decision on peer-to-peer file sharing in Metro-Goldwyn-Mayer Studios v. Grokster (2005). A new section, “The Future of File Sharing,” addresses the challenge raised by BitTorrent. Other updates explain the final disposition of the challenge to the Child Online Protection Act of 1998, provide an expanded analysis of student speech on the Internet, and introduce cases involving the CAN-SPAM Act ( Controlling the Assault of Non-Solicited Pornography And Marketing Act) of 2003.

Part V, “Conclusion,” consists of a single chapter.

Chapter 15, “Approaches to Free and Responsible Communication,” discusses the main reasons for freedom of speech and summarizes the free-speech philosophies of six leading First Amendment theorists of the twentieth century—Zechariah Chafee, Jr., Alexander Meiklejohn, Thomas I. Emerson, Franklyn S. Haiman, C. Edwin Baker, and Robert C. Post. The chapter then introduces the subject of communication ethics and urges readers to think about the relationship between liberty of speech and the responsibilities that go with that liberty.

RESOURCES FOR INSTRUCTORS

A rich collection of instructional materials supports the classroom use of Freedom of Speech in the United States.

An annual update summarizing the latest decisions of the United States Supreme Court, consequential lower court decisions, and legal developments is issued each fall after the Supreme Court adjourns. The annual updates are posted to the web site, with links to the full texts of the decisions they discuss.
The Instructor’s Resource Manual with course ideas (including model syllabuses and course projects), additional exercises and activities, and free speech resources (including print and video) is available to adopters. The manual also includes an extensive bibliography with more than 1250 books, book chapters, and journal articles organized by chapter.
The web site, maintained by the authors, offers additional resources for teachers and students, including a free speech library and an extensive list of free speech resources. The “Free Speech Library” contains 50 important historical documents related to freedom of speech and the full text of more than 125 of the Supreme Court’s most important free speech decisions, including all the landmark cases discussed in the sixth edition. To make the library easily accessible, the cases are organized both by chapter and by case name. The “Free Speech Resources,” selected to help teachers and students users track recent developments and support their research, includes links to a broad range of government web sites, sites devoted to freedom of speech, special sites for legal research, and topical blogs and podcasts. New content is added to the web site on a regular basis. The web site is available at http://www.bc.edu/free_speech.

ACKNOWLEDGMENTS

Our gratitude is extended to the many individuals who encouraged us in researching and writing Freedom of Speech in the United States. At the outset we want to thank the faculty members and administrators at the University of North Carolina at Greensboro who in 1981 supported the research and writing of the first edition. Their support included a financial grant from the University Research Council and the backing of departmental administrators John Lee Jellicorse and Ethel Glenn. Additional on-campus support came from the staff of the Walter Clinton Jackson Library of the University of North Carolina at Greensboro (where most of the research for the first edition was done), and from Tim Barkley and Sylvia Eidam of the university’s Learning Resources Center, who prepared most of the historical photographs used in the book.

We also want to thank the faculty members and administrators at Boston College who supported later editions of this book. Their support included space on an institutional server for the book’s web site, funds for an undergraduate research assistant, and use of both the Thomas P. O’Neill, Jr., Library and the Boston College Law Library for research purposes. We are particularly indebted to Madeleine K. Rodriguez for her research efforts, to communication librarian Ken Liss for building an outstanding collection of materials, and to all of the students who registered for Communication Law in recent years.

For reading and making suggestions on one or more of the first five editions of the text, we are indebted to George D. Arnold, American University; Bernardo Attias, California State University, Northridge; Charles H. Ball, Simmons College; Paul Barefield, University of Southwestern Louisiana; Bradley J. Bloch, University of Wisconsin–Milwaukee; Judith M. Buddenbaum, Colorado State University; Ron Burgher, Concord College; Larry L. Burriss, Middle Tennessee State University; Roger Conaway, University of Texas at Tyler; Grant C. Cos, Rochester Institute of Technology; Michael K. Curtis, Wake Forest University (School of Law); Arthur P. Doederlein, Northern Illinois University; Donald A. Fishman, Boston College; Ted Frederickson, University of Kansas; Ann M. Gill, Colorado State University; Trischa Goodnow, Oregon State University; Jean Goodwin, Northwestern University; William I. Gorden, Kent State University; John S. Gossett, University of North Texas; Philip A. Gray, Northern Illinois University; Franklyn S. Haiman, Northwestern University; Virginia H. Higgins, Emporia State University; Elizabeth Blanks Hindman, North Dakota State University; Charles Howard, Tarleton State University; Les Hyder, Eastern Illinois University; Richard Ice, St. John’s University; Michael T. Ingram, Whitworth College; David L. Jamison, University of Akron; Richard L. Johannesen, Northern Illinois University; Carl L. Kell, Western Kentucky University; Teresa Keller, Emory and Henry College; Howard Kleiman, Miami University; Kassian A. Kovalcheck, Vanderbilt University; the late Ruth McGaffey, University of Wisconsin–Milwaukee; Robert W. Langran, Villanova University; Charles Levendosky, University of Wyoming/Casper College; John J. Makay, Bowling Green State University; Molly Mayhead, Western Oregon University; Shannon McCraw, Southeastern Oklahoma State University; Todd F. McDorman, Wabash College; William O. Moseley, Jr., a Greensboro attorney; Paul Newman, Indiana University; Frank O’Mara, State University of New York at Oneonta; William J. Osborne, Kent State University–Stark Campus; Richard A. Parker, Northern Arizona University; Thomas Pyle, Southern Oregon University; Loretta Ramos, Fresno City College; David Robinson, Youngstown State University; Maureen Rubin, California State University, Northridge; Stuart A. Ryder, Judson College; Edward Schiappa, University of Minnesota; Sandy Scott, University of Missouri; Roger Soenksen, James Madison University; Michelle Stanton, California State University, Northridge; John D. Stone, James Madison University; A. Yvonne Thrash, University of Texas at Tyler; and Bernadyne Weatherford, Rowan University.

For the sixth edition, we are indebted to Lillian L. Beeson, University of Pittsburgh at Greensburg; Charlyne Berens, University of Nebraska–Lincoln; Sandra L. Borden, Western Michigan University; Mary Carver, Northern Illinois University; Susan Chang, University of Miami; Kevin A. Clark, Oregon State University; Roger N. Conaway, University of Texas at Tyler; William R. Davie, University of Louisiana at Lafayette; Michael Dupagne, University of Miami; Paul D. Fischer, Middle Tennessee State University; Juliet Gill, University of Miami; S. L. Harrison, University of Miami; Carl T. Hyden, Morgan State University; Les Hyder, Eastern Illinois University; Richard Ice, St. John’s University; Robert L. Kerr, University of Oklahoma; Rita Kirk, Southern Methodist University; Peter N. Kirstein, St. Xavier University; Howard Kleiman, Miami University; Kassian A. Kovalcheck, Vanderbilt University; Molly Mayhead, Western Oregon University; Shannon K. McCraw, Southeastern Oklahoma State University; Lee McGaan, Monmouth College; Michael A. McGregor, Indiana University; Terence Morrow, Gustavus Adolphus College; Charles Mullin, University of California, Santa Barbara; Catherine H. Palczewski, University of Northern Iowa; Amy Pason, University of Minnesota; Samuel A. Terilli, University of Miami; Yvonne Thrash, University of Texas–Tyler; James Van Dyke, Marian College; and Deborah A. Wieczorkowski Wanamaker, University of Pittsburgh.

We are especially indebted to Franklyn S. Haiman, professor emeritus of communication studies, Northwestern University, who was a reader for the first edition and consulting editor for the subsequent editions, including this one. Professor Haiman’s thoughtful suggestions, emerging from his insight into the nuances of First Amendment law, have been invaluable. Not only has he been generous with the time he invested in this book, Professor Haiman has also served as both an inspiration and mentor for a new generation of scholars working on issues related to the freedom of expression.

Finally, we are fortunate to be working with Kathleen Domenig, who was development editor for the first edition (published by Random House), and who now has her own company, Strata Publishing, Inc. Her support for this project has been unwavering from the beginning, and her suggestions for this new edition have sharpened the argument, simplified our writing, and kept us from floundering. We owe her a profound debt of gratitude and offer this brief note of thanks to her and to Brian Henry, the general manager at Strata Publishing, for all of their efforts on our behalf. Their hard work is evident on each and every page of Freedom of Speech in the United States and they deserve much more credit than a single paragraph in these acknowledgements.

Thomas L. Tedford
Dale A. Herbeck