X or politician Y, consider whether you are perhaps too eager to believe.
1. Daily Currant, March 22, 2016.
2. David Weigel, “‘I Want to Believe’: Why Does the Media Keep Running Fake Stories From a Joke-Free Satire Site?” Slate, March 11, 2013, www.slate.com/articles/news_and_politics/politics/2013/03/daily_currant_satire_the_fake_news_website_keeps_fooling_journalists.html.
3. Max Read, “Breitbart Fooled by Joke News Site After Blasting Writer for Being Fooled by Same Joke News Site,” Gawker, March 11, 2013, gawker.com/5989887/breitbartcom-fooled-by-joke-news-site-after-blasting-writer-for-being-fooled-by-same-joke-news-site.
4. Alex Goldman, “Facebook Attempts to Teach Its Users to Recognize Satire—With a ‘Satire’ Tag,” On the Media, August 18, 2014, www.onthemedia.org/story/facebook-attempts-teach-its-users-recognize-satire-satire-tag/.
5. Ibid.
Coming into office in 1969, however, President Nixon made it one of his administration’s goals to control pornography in America. Once the Court began to reflect the ideological change that came with Nixon’s appointees, rulings became more restrictive. In 1973 the Court developed the Miller test, which returned more control over the definition of obscenity to state legislatures and local standards. Under the Miller test, the Court asks “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law” and “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value” (called the SLAPS test).43 These provisions have also been open to interpretation, and the Court has tried to refine them over time. The emphasis on local standards has meant that pornographers can look for those places with the most lenient definitions of obscenity in which to produce and market their work, and the Court has let this practice go on.
Miller test the rule used by the courts in which the definition of obscenity must be based on local standards
Still, the question of whether obscenity should be protected speech raises some fundamental issues, chief among them defining what is obscene. Justice John Marshall Harlan was quite right when he wrote that “one man’s vulgarity is another man’s lyric,”44 raising the inescapable possibility of majorities enforcing decisions on minorities. People offended by what they consider to be obscenity might advocate banning adult bookstores, nude dancing at bars, and naked women on magazine covers at the supermarket. Many feminists argue that pornography represents aggression toward women and should be banned primarily because it perpetuates stereotypes and breeds violence. And some people carry the notion of obscenity further, arguing that selling violent video games to minors is obscene. (The Court has ruled it is not.45)
Fighting Words and Offensive Speech
Among the categories of speech the Court has ruled may be regulated is one called fighting words, words whose express purpose is to create a disturbance and incite violence in the person who hears the speech.46 However, the Court rarely upholds legislation designed to limit fighting words unless the law is written very carefully. Consequently, it has held that threatening and provocative language is protected unless it is likely to “produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”47 It has also ruled that offensive language, though not protected by the First Amendment, may occasionally contain a political message, in which case constitutional protection applies.48
fighting words speech intended to incite violence
These rulings have taken on modern-day significance in the wake of the political correctness movement that swept the country in the late 1980s and 1990s, especially on college campuses. Political correctness refers to an ideology, held primarily by some liberals, including some civil rights activists and feminists, that language shapes society in critical ways and, therefore, that racist, sexist, homophobic, or any other language that demeans any group of individuals should be silenced to minimize its social effects. An outgrowth of the political correctness movement is the adoption of speech codes on college campuses, banning speech that might be offensive to women or ethnic and other minorities. Critics of speech codes, and of political correctness in general, argue that such practices unfairly repress free speech, which should flourish on, of all places, college campuses. In 1989 and 1991, federal district court judges agreed, finding speech codes on two campuses, the University of Michigan and the University of Wisconsin, in violation of students’ First Amendment rights.49 Neither school appealed. The Supreme Court spoke on a related issue in 1992 when it struck down a Minnesota “hate crime law” that prohibited activities that “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court held that it is unconstitutional to outlaw such broad categories of speech based on its content.50
political correctness the idea that language shapes behavior and therefore should be regulated to control its social effects
How much free speech do we need on our college campuses?
Freedom of the Press
The First Amendment covers not only freedom of speech but also freedom of the press. Many of the controversial issues we have already covered apply to both of these areas, but some problems are confronted exclusively, or primarily, by the press: the issue of prior restraint, libel restrictions, and the conflict between a free press and a fair trial.
Prior Restraint
Prior restraint, a restriction on the press before its message is actually published, was the primary target of the founders when they drew up the First Amendment. The Supreme Court has shared the founders’ concern that prior restraint is a particularly dangerous form of censorship and has almost never permitted it. Two classic judgments illustrate their view. In Near v. Minnesota, the Court held that a Minnesota law infringed on a newspaper publisher’s freedom of the press. Although an extreme emergency, such as war, might justify previous restraint on the press, wrote Justice Charles Evans Hughes, the purpose of the First Amendment is to limit it to those rare circumstances.51 Similarly and more recently, in New York Times Company v. United States, the Court prevented the Nixon administration from stopping the publication by the New York Times and the Washington Post of the Pentagon Papers, a “top-secret” document about U.S. involvement in Vietnam. The Court held that “security” is too vague a concept to be allowed to excuse the violation of the First Amendment. To grant such power to the president, it ruled, would be to run the risk of destroying the liberty that the government is trying to secure.52
prior restraint censorship of or punishment for the expression of ideas before the ideas are printed or spoken
Libel
Freedom of the press also collides with the issue of libel, the written defamation of character (verbal defamation is called slander).
