The Groundwork
  • Index
  • Why Start One?
  • The Basics
  • Decoding the Adult Mind
  • Production Ideas
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    Legal Stuff
  • Administrators Are Stupid
  • 1st Amendment Theory
  • Protected Speech
  • Exceptions to the 1st
  • State Law vs. Federal
  • Public School vs. Private School
  • The 5th Amendment
  • The Tinker Standard
  • Search & Seizure Rights
  • If You Get In Deep Shit
  • How to Read a Court Opinion

    Journalism
  • Libel, Obscenity, and Slander
  • Do's & Don'ts
  • The Story of Mr. Harvey Wade

    Resources
  • The ACLU Is Your Friend
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  • The Channel Zero Webring
  • Student Press Law Center
  • Factsheet Five

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  • Izzy's Guide
    to Starting & Running an Underground Paper

    Made from 100% Recycled Pimply Teenager Angst



    Exceptions to the 1st Amendment: What constitutes unprotected speech?

    Freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if merely words are used. For example, if you write an article filled with death threats and ethnic slurs against an administrator or teacher, you better get yourself a good lawyer.

    The Supreme Court has recognized several limited exceptions to the First Amendment. In Chaplinsky v. New Hampshire (1942), the Court held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not protected. This decision was based on the fact that fighting words are of "slight social value as a step to truth."

    Anything obscene or false (See my Libel, Obscenity, and Slander section) is also not protected speech.

    Profanity, as a general rule, falls outside the scope of protection, unless in its given context, communicates important, protected speech. For example, a really pissed off kid wore a jacket into a courthouse with the words "Fuck the Draft" written on the back during the Vietnam War. In Cohen v. California (1971), the Court held that because he conveyed an emotive political message, it was okay to use "fuck." While Supreme Court justices have commented that profanity can indeed have some value in the marketplace of ideas, their dicta, or written rants in a judicial opinion, hold less weight than actual case law.

    So basically, if you just hurl insults at administrators and call them "fat fucking pieces of shit" for an entire paragraph absent of any real political or substantial context, don't expect the First Amendment to back you up. Defaming or saying/writing false statements on someone's character is not protected. In my own opinion, it detracts from your writing if you curse too much, you look immature and like the dumb high school kid you really are, and you won't gain any respect from faculty. So in the interest of good taste, try to keep bad fucking words like..you know.. "fuck" to a fucking minimum.

    Sedition, or advocating the overthrow of the government, has traditionally fallen outside the scope of the First Amendment in times of war. Since 1919 with Schenk v. U.S. where a man was prosecuted for passing out anti-draft pamphlets, Congress has, on occasion, punished those who did not agree with U.S. foreign policy, particularly during times of war. The courts often deferred to the government's assertion of a "breach of national security." Socialists, anarchists, communists, and members of left wing labor movements continued to be prosecuted by the States well into the late 1950's with Dennis v. U.S. (1951) and Yates v. U.S. (1957). If you look at us today with the aftermath of September 11th, the government is slowly moving in that direction once again in the interest of national security. The courts have continually struggled with the fine line between speech advocating political change, and speech that incites immediate lawless action against the government. Personally, if I were you, I would be a little careful right now with what you say. At least, until Bush is out of office.

    But as a general rule, political speech may not be abridged on the basis of content. Government can't impose special prohibitions against those who wish to speak on disfavored subjects, even if the content is verbally assaultive and has an emotionally painful impact. Speech can be abridged only when it:

      1. Physically interferes with other legitimate activities, i.e. you and several others throw yourselves in the middle of a huge parade yelling about the war against Iraq, and as a result, marching horses freak out, and little kids are trampled to death.
      2. When it is thrust upon "captive" or unwilling listeners, i.e. harassing shoppers outside a supermarket and chasing them to their cars if they don't agree with your political views.
      3. When it constitutes a direct incitement to unlawful behavior likely to occur, i.e. you tell everyone in article that you have an arsenal of bombs, and need volunteers to wield a crusade against the school establishment.
      4. In the absence of these conditions, which concern action rather than speech, political expression in a public forum enjoys nearly absolute protection regardless of the intended negative impact of the speaker. Need an example? In Village of Skokie v. National Socialist Party (1977), the courts ruled in favor of allowing a NAZI party to meet in a predominantly Jewish neighborhood where many residents were survivors of the death camps.

      isabel@oblivion.net | AIM: Isabeetle | ICQ: 1757411
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