III.                   What is Speech?

1.         Except for those that actually incite someone to take illegal actions, most forms of speaking and writing are protected by the U.S. Constitution, except for these four:

                                                                i.      A libel is a written statement that defames the character of another person (saying it is called slander), but suing and collecting damages for libel can only be done if it is proven that the libel was false AND that harmed the person suing.

a.         Public figures find it even harder to collect damages from libel because they must prove that “actual malice” (reckless disregard for truth or falsity of the statement) was done when the libel was written.

                                                               ii.      False advertising is obvious, and it can be punished if it is proven that the advertising caused a person to be harmed (physically or financially or whatever) by the thing advertised.

                                                              iii.      The 1^st Amendment does not protect obscenity because this is a relative idea and depends on the viewpoints of individual (what’s offensive to one may be welcome by another… i.e. cursing, pornography, racial slurs, etc…), and the Court has often upheld this view.

a.         The disputes are between those who value liberty above all and fear that any restrictions on one will lead to more on all, and those who value decency above liberty and feel that reasonable people can distinguish between offensive and serious work.

b.         The Supreme Court has basically adopted the view that localities decide for themselves if they tolerate hardcore pornography or not, but that if they don’t, they must follow some fairly strict constitutional tests.

c.         Almost any form of visual or auditory communication can be considered “speech,” even nude dancing, although in 1991, the Court held that this was barely within the protection of the 1^st Amendment, so a local law banning totally nude dancing was OK.

d.         Then again, there are feminist groups who have attacked pornography on the grounds that it degrades women, but the Supreme Court has said that it does not.

e.         Thus, “zoning” regulations have been used to limit where porn or other possibly obscene things can be sold, etc… but a new problem regards the Internet, and how to control possible obscenities found in it.

                                                              iv.      The Court also ruled that symbolic speech cannot be treated like real speech, or else, people would have the excuse to do all sorts of illegal things, from burning draft cards to murdering and raping people and committing arson.

a.         However, one can burn a flag, since the U.S. gov’t has no rights over the U.S. flag, as opposed to having rights to run a draft, prevent murders and rapes, etc…