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Freedom of Speech
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 seventh edition has been updated to reflect the latest free speech decisions of the U.S. Supreme Court; explore ongoing controversies such as indecent broadcasting, funeral picketing, and student speech on social networking sites; and show more clearly how historical issues and decisions shape Internet-age concerns.
The 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 devoted to defamation, privacy, commercial expression, prior restraint, free press and fair trial, copyright, and access. 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.
- To make complex concepts and relationships clear to students with little or no legal background, 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. Care has been taken to minimize use of legal language that might distract or confuse the reader.
- Important Supreme Court decisions are summarized in landmark 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. The landmark decisions, distributed throughout the book, provide a solid conceptual framework for understanding modern free speech doctrine.
- Each chapter ends with exercises and a list of “Selected Readings,” notable books that expand on the themes set out in the chapter. The additional exercises and activities included in previous editions have been moved to the Instructor’s Manual.
- 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.
- More than 30 historical and contemporary photos and illustrations, several new to this edition, help bring the subject alive for students.
FEATURES OF THE NEW EDITION
The seventh edition has been carefully updated to reflect recent developments.
- Recent free speech decisions of the United States Supreme Court are reflected in the new edition; among them, important rulings dealing with funeral picketing, dog fighting, and indecent broadcasting.
- Current controversies such as WikiLeaks, speech by students originating off-campus, and file sharing are incorporated throughout.
- Broadcast and Internet issues and cases are now incorporated in the book’s conceptual structure, replacing separate chapters on those media and showing more clearly how historical precedents are applied to current issues and new technologies.
- Defamation and privacy are now covered in two chapters (Chapters 4 and 5), integrating current issues such as libel tourism, defamation in cyberspace, e-mail privacy, and the intentional infliction of emotional distress.
- A new chapter on access (Chapter 14) explores issues related to government control of information and private control of the mass media.
- The graphics program has been enhanced to increase student comprehension and interest. New landmark case boxes summarize Hustler v. Falwell (Chapter 5), Texas v. Johnson (Chapter 11), and MGM v. Grokster (Chapter 13). Two new diagrams outline complex legal issues. Several new photos highlight recent issues and cases.
More detailed revisions are discussed in the following section of the preface.
PLAN OF THE BOOK
The text is divided into five main sections.
Part I, “Historical Developments,” places freedom of expression in its 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 such contemporary controversies as 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. The final part of this chapter has been reorganized to focus on contemporary efforts to regulate political heresy and to highlight connections to recent cases involving true threats, releasing government secrets, supporting terrorism, publishing instruction manuals, and compelled speech.
Chapter 4, “Defamation,” now deals exclusively with defamation law. (Privacy, which was discussed in the same chapter in previous editions, is now covered in a separate chapter.) A new section is devoted to defamation in cyberspace. The final part of this chapter considers defamation as censorship, and includes an expanded discussion of strategic lawsuits against public participation (SLAPPs) and libel tourism.
Chapter 5, “Privacy,” introduces the fundamentals of privacy law. The discussion of privacy has been expanded to include private communication, anonymity, e-mail privacy, and efforts to unmask anonymous speakers. The discussion of the intentional infliction of emotional distress tort has a new case, Snyder v. Phelps.
Chapter 6, “Religio-Moral Heresy: From Blasphemy to Obscenity,” traces the evolution of laws against blasphemy to laws against obscenity, then to recent efforts to regulate child pornography and “indecent” broadcasting. A new section discusses government efforts to regulate obscene and indecent content.
Chapter 7, “Provocation to Anger and Words that Wound,” has been updated to include United States v. Stevens and new efforts to regulate hate speech on college campuses.
Chapter 8, “Commercial Speech,” explains the complex relationships between restrictions on commercial speech and the First Amendment. To help students understand the issues that determine whether a restriction on commercial speech is constitutional, a new diagram has been added to illustrate the Central Hudson test. The last section of the chapter discusses regulations on special types of commercial speech, including advertising sin or vice products, compelled commercial speech, unsolicited commercial e-mail (previously discussed in a separate chapter), and charitable solicitation.
Part III, “Special Issues,” addresses problems of communication freedom that arise from situational factors.
Chapter 9, “Prior Restraint,” which discusses an array of issues with a special emphasis on national security. A new section on “WikiLeaks and Classified Documents” considers whether prior restraints are possible in the era of the Internet, a medium that does not respect national laws or boundaries.
Chapter 10, “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, as well as reporter’s privilege and shield laws. Updates include a new section on managing publicity. The chapter also discusses new developments involving cameras in federal courtrooms and a proposed federal shield law.
Chapter 11, “Constraints of Time, Place, and Manner,” covers a broad range of constraints in the public forum and on private property. A new diagram has been included to help students understand the nuances of time, place, and manner restrictions. This chapter also offers a discussion of “speech plus” and special issues raised by flag desecration laws.
Chapter 12, “Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons,” has a new section on off-campus student speech.
Chapter 13, “Copyright,” sets out the general principles of copyright law that 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. A new section on copyright law in a digital age covers secondary liability, file sharing, and the notice and takedown cases.
Chapter 14, “Access,” considers whether the First Amendment includes a general right of access, then discusses access to government property, information, and meetings, as well as public access to privately owned media such as newspapers, television stations, cable networks, and the Internet.
Part IV, “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.
- The web site (http://www.tedford-herbeck-free-speech.com) 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 seventh 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.
- 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 updates are posted to the web site, with links to the full texts of the decisions they discuss.
- The Instructor’s Manual includes model syllabi, course projects, additional exercises and activities, free speech resources (including print and video), hundreds of topics for papers and oral reports, and other resources. The manual has been expanded for this edition.
More than thirty years ago, Thomas L. Tedford, a professor at the University of North Carolina at Greensboro, had the idea for a textbook that he could use in his course on freedom of speech. The volume that resulted, now in its seventh edition, stands as tribute to Dr. Tedford’s devotion to the essential freedoms guaranteed by the First Amendment. Like Justice William J. Brennan, whom he greatly admired, Professor Tedford believed in the principle that “debate on public issues should be uninhibited, robust, and wide-open.” Professor Tedford was one of the founders of the Commission on Freedom of Expression of the National Communication Association, an editor of the Free Speech Yearbook, and an award-winning author. Although Professor Tedford passed away in 2009, his memory lives on in the pages of this volume.
Freedom of Speech in the United States also benefited from the efforts of another legendary figure, Franklyn S. Haiman, professor emeritus of communication studies at Northwestern University, who was a reader for the first edition and consulting editor for five subsequent editions. A master of First Amendment law, Professor Haiman was an invaluable resource, as he was always willing to review a manuscript and to offer insightful suggestions. Professor Haiman is also one of the six theorists featured in Chapter 15. Professor Haiman contributed to the project in a second way: the junior author was one of his students.
This book has also benefited from feedback from reviewers and users. For reading and making suggestions on one or more of the previous 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; Lillian L. Beeson, University of Pittsburgh at Greensburg; Charlyne Berens, University of Nebraska–Lincoln; Bradley J. Bloch, University of Wisconsin–Milwaukee; Sandra L. Borden, Western Michigan University; Judith M. Buddenbaum, Colorado State University; Ron Burgher, Concord College; Larry L. Burriss, Middle Tennessee State University; Mary Carver, Northern Illinois University; Susan Chang, University of Miami; Kevin A. Clark, Oregon 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); William R. Davie, University of Louisiana at Lafayette; Arthur P. Doederlein, Northern Illinois University; Michael Dupagne, University of Miami; Paul D. Fischer, Middle Tennessee State University; Donald A. Fishman, Boston College; Ted Frederickson, University of Kansas; Ann M. Gill, Colorado State University; Juliet Gill, University of Miami; 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; S. L. Harrison, University of Miami; Virginia H. Higgins, Emporia State University; Elizabeth Blanks Hindman, North Dakota State University; Charles Howard, Tarleton State University; Carl T. Hyden, Morgan 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; 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; 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; Lee McGaan, Monmouth College; Ruth McGaffey, University of Wisconsin–Milwaukee; Michael A. McGregor, Indiana University; Terence Morrow, Gustavus Adolphus College; William O. Moseley, Jr., a Greensboro attorney; Charles Mullin, University of California, Santa Barbara; Paul Newman, Indiana University; Frank O’Mara, State University of New York at Oneonta; William J. Osborne, Kent State University–Stark Campus; Catherine H. Palczewski, University of Northern Iowa; Richard A. Parker, Northern Arizona University; Amy Pason, University of Minnesota; 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; Samuel A. Terilli, University of Miami; A. Yvonne Thrash, University of Texas at Tyler; James Van Dyke, Marian College; Deborah A. Wieczorkowski Wanamaker, University of Pittsburgh; and Bernadyne Weatherford, Rowan University.
For the seventh edition, we are indebted to Bernardo Attias, California State University, Northridge; Lillian L. Beeson, University of Pittsburgh at Greensburg; Charlyne Berens, University of Nebraska–Lincoln; Mary Elizabeth Bezanson, University of Minnesota, Morris; Bruce Bubacz, University of Missouri–Kansas City; David Dewberry, Rider University; Michael Dupagne, University of Miami; David Gould, Queens College; Jeffrey Hedrick, Jacksonville State University; Erica Hollander, Metropolitan State University of Denver; Richard Ice, St. John’s University; Robert Kerr, University of Oklahoma; Edward M. Kimbrell, Middle Tennessee State University; Rita Kirk, Southern Methodist University; Dan Kozlowski, Saint Louis University; Molly Mayhead, Western Oregon University; Ron Miskoff, Rutgers University; Charles Mullin, University of California at Santa Barbara; Ileana Oroza, University of Miami; Timothy A. Rothberg, Houston Baptist University; David Vest, Colorado State University; and Karen Whedbee, Northern Illinois University.
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, and her suggestions for this new edition have sharpened the argument, simplified the prose, and kept the project on schedule. 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 more credit than a single paragraph in these acknowledgements.