the issue was raised again. Again the Court divided five to four, voting to protect the burning of the flag as symbolic expression.35 Because the patriotic feelings of so many Americans were fired up by this ruling, Congress passed the federal Flag Protection Act in 1989, making it a crime to desecrate the flag. In United States v. Eichmann, the Court declared the federal law unconstitutional for the same reasons it had overturned the state laws earlier: all were aimed specifically at “suppressing expression.”36 The only way to get around a Supreme Court ruling of unconstitutionality is to amend the Constitution. Efforts to pass an amendment have failed in the House and Senate, meaning that despite the strong feeling of the majority to the contrary, flag burning is still considered protected speech in the United States.
The Court has recently proved willing to restrict symbolic speech, however, if it finds that the speech goes beyond expression of a view. In a 2003 ruling the Court held that cross burning, a favored practice of the Ku Klux Klan and other segregationists that it had previously held to be protected speech, was not protected under the First Amendment if it was intended as a threat of violence.37 The Court noted that cross burning would still be protected as symbolic speech in certain cases, such as at a political rally.
Freedom of Assembly
Closely related to symbolic speech is an additional First Amendment guarantee, freedom of assembly, or “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The courts have interpreted this provision to mean not only that people can meet and express their views collectively, but also that their very association is protected as a form of political expression. So, for instance, they have ruled that associations like the NAACP (National Association for the Advancement of Colored People) cannot be required to make their membership lists public38 (although groups deemed to have unlawful purposes do not have such protection) and that teachers do not have to reveal the associations to which they belong.39 In addition, the Court has basically upheld people’s right to associate with whom they please, although it held that public40 and, in some circumstances, private groups cannot discriminate on the basis of race or sex.41
freedom of assembly the right of the people to gather peacefully and to petition government
Obscenity and Pornography
Of all the forms of expression, obscenity has probably presented the Court with its biggest headaches. In attempting to define it in 1964, Justice Potter Stewart could only conclude, “I know it when I see it.”42 The Court has used a variety of tests for determining whether material is obscene, but until the early 1970s, only the most hard-core pornography was regulated.
Don’t Be Fooled by . . . Parody News Sites
The First Amendment is an essential tool for keeping the republic. Americans who wish to speak truth to power are protected—whether they do it in a pamphlet, online, in a song, or on a stage. But what happens when they employ made-up facts or exaggerations as a vehicle to speak truth to power? That is: when a story is fabricated around what seems like a grain of truth, stretched to its absurd limits to make a political point? That’s the nature of satire, a form of writing, art, or drama that uses irony, exaggeration, and humor to shed light on specific—and often political—issues.
It can be tricky telling stories that seem like they could be true, because it can be remarkably easy to fool people into thinking they are true. Consider the web site Daily Currant, which during the Obama administration posted fake news stories with no punchlines or discernible humor to be found. It presented completely false headlines (for example, “Obama Nominates Abortion Doctor to Replace Scalia on the Supreme Court” or “Donald Trump: ‘I Have the Greatest Toenails in the History of Mankind’”) that at some level seem reasonable to at least some readers. Although most folks get the joke, at least a few will invariably click, like, or share, believing the story to be true.1
If you’ve been fooled by a Daily Currant piece, don’t feel bad: it’s also happened to reporters at the New York Times and the Washington Post.2 In a warning to his own staff, one editor described the Currant’s stories as “semi-believable political wish-fulfillment articles distinguished by a commitment to a complete absence of what most people would recognize as ‘jokes.’”3
What to Watch Out For
It’s not always easy to tell the difference between real news and fake news, but there are a few steps you can take to critically assess whether something is real or satire. Whether or not you actually find it funny is wholly up to you.
Notice the presentation. Fake news sites take great pains to look and sound like authentic journalism while “reporting” stories that are completely untrue. Site names like Daily Currant, National Report, Empire News, and World News Daily Report sound like legitimate news sources, and their format and style mimic hard news. Even the well-known satire site The Onion, despite its silly name and often hilarious headlines, still gets mistaken for real news often enough that, by 2015, Facebook was considering adding a “satire” tag to Onion stories shared on the site.4 Remember that if something looks like news and sounds like news . . . it still might not be news. Googling the site’s name will usually tell you if it’s true.
Know your satire sources. Most people know satire when they see it, and stories from traditional comedy sites (like Saturday Night Live’s “Weekend Update” or The Daily Show) are hard to mistake as real news. But as a consumer of news from Internet sources, it’s up to you to know which “news” sites are real and which are satire. Further muddying the waters are blogs connected to more traditional news publications, such as The New Yorker’s “Borowitz Report,” which, other than the inclusion of the word “humor” in the site’s URL, is not always recognizable as satire.
Follow the links. Is what you are reading original reporting, or is it a story about a story from another web site or news source? If the source of a story is a link to another story—check the original source.
Don’t make laughter your guide. Remember that satire doesn’t have to be funny to be fake: some news satire sites are, for the most part, completely devoid of anything you might call a “joke,” depending on shock value or sheer unlikeliness for their appeal.
Beware news reports that seem to skewer someone you already don’t like. When individuals come across something that seems to support their preferred narrative, they tend to want to believe it. In 2013, for example, a Daily Currant report that liberal economist Paul Krugman had filed for bankruptcy was quickly picked up by conservative blogs, and another Daily Currant story that Sarah Palin had joined Al Jazeera was reposted to liberal ones.5 If something
