III. RESULTADOS Y DISCUSIÓN
3.6. Caída de frutos en palto
At least fi ve categories of speech fall outside the absolute guarantees of the First Amendment and therefore outside the realm of absolute protection: (1) libel and slander, (2) obscenity and pornography, (3) fi ghting words, (4) commercial speech, and (5) public school children. It should be emphasized once again that these types of speech still enjoy considerable protection by the courts.
Libel and Slander If a written statement is made in “reckless disregard of the
truth” and is considered damaging to the victim because it is “malicious, scandalous, and defamatory,” it can be punished as libel. If an oral statement of such a nature is made, it can be punished as slander.
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Today, most libel suits involve freedom of the press, and the realm of free press is enormous. Historically, newspapers were subject to the law of libel, which pro- vided that newspapers that printed false and malicious stories could be compelled to pay damages to those they defamed. In recent years, however, American courts have greatly narrowed the meaning of libel and made it extremely diffi cult, par- ticularly for politicians or other public fi gures, to win a libel case against a news- paper. In the important 1964 case of New York Times v. Sullivan, the Court held that to be deemed libelous, a story about a public offi cial not only had to be untrue but also had to result from “actual malice” or “reckless disregard” for the truth.38 In
other words, the newspaper had to print false and malicious material deliberately. In practice, this is a very diffi cult legal standard to meet.
Obscenity and Pornography If libel and slander cases can be diffi cult because of the problem of determining the truth of statements and whether those statements are malicious and damaging, cases involving pornography and obscenity can be even stickier. It is easy to say that pornography and obscenity fall outside the realm of protected speech, but it is impossible to draw a clear line defi ning exactly where protection ends and unprotected speech begins. Not until 1957 did the Supreme Court confront this problem, and it did so with a defi nition of obscenity that may have caused more confusion than it cleared up. Justice William Brennan, in writ- ing the Court’s opinion, defi ned obscenity as speech or writing that appeals to the “prurient interest”—that is, books, magazines, fi lms, and other materials, whose purpose is to excite lust as this appears “to the average person, applying contem- porary community standards.” Even so, Brennan added, the work should be judged obscene only when it is “utterly without redeeming social importance.”39 Brennan’s
defi nition, instead of clarifying the Court’s view, actually caused more confusion. In 1964, Justice Potter Stewart confessed that, although he found pornography impossible to defi ne, “I know it when I see it.”40
An effort was made to strengthen the restrictions in 1973, when the Supreme Court expressed its willingness to defi ne pornography as a work that (1) as a whole, is deemed prurient by the “average person” according to “community standards”; (2) depicts sexual conduct “in a patently offensive way”; and (3) lacks “serious literary, artistic, political, or scientifi c value.” This defi nition meant that pornog- raphy would be determined by local rather than national standards. Thus, a local bookseller might be prosecuted for selling a volume that was a best-seller nation- ally but that was deemed pornographic locally.41 This new defi nition of standards
did not help much either, and not long after 1973 the Court began again to review all such community antipornography laws, reversing most of them.
In recent years, the battle against obscene speech has targeted “cyberporn,” por- nography on the Internet. Opponents of this form of expression argue that it should be banned because of the easy access children have to the Internet. The fi rst major effort to regulate the content of the Internet occurred in 1996, when Congress passed the Communications Decency Act (CDA), designed to regulate the online transmis- sion of obscene material. The constitutionality of the CDA was immediately chal- lenged in court by a coalition of interests led by the American Civil Liberties Union (ACLU). In the 1997 Supreme Court case of Reno v. ACLU, the Court struck down the CDA, ruling that it suppressed speech that “adults have a constitutional right to
receive,” saying that “the level of discourse reaching the mailbox simply cannot be limited to that which would be suitable for a sandbox.” Supreme Court justice John Paul Stevens described the Internet as the “town crier” of the modern age and said that the Internet was entitled to the greatest degree of First Amendment protection possible.42 By contrast, radio and television are subject to more control than the
Internet. In 2003, however, the Supreme Court upheld a federal law, the Children’s Internet Protection Act, that requires public libraries to install antipornography fi l- ters on all computers with Internet access. Librarians are allowed to unblock some sites at the request of adult patrons.43 In 2008 the Supreme Court upheld a law that
made it a crime to sell child pornography on the Internet.44
In 2000 the Supreme Court extended the highest degree of First Amendment protection to cable (not broadcast) television. In United States v. Playboy Entertain-
ment Group, the Court struck down a portion of the 1996 Telecommunications Act
that required cable TV companies to limit the broadcast of sexually explicit pro- gramming to late-night hours. In its decision, the Court noted that the law already provided parents with the means to restrict access to sexually explicit cable chan- nels through various blocking devices. Moreover, such programming could come into the home only if parents decided to purchase such channels in the fi rst place.45
Closely related to the issue of obscenity is the matter of violent broadcast con- tent. Can a state or the federal government prohibit broadcasts or publications deemed to be excessively violent? Here, too, the Court has generally upheld free- dom of speech. For example, in the 2011 case of Brown v. Entertainment Merchants
Association the Court struck down a California law banning the sale of violent
video games to children, saying that the law violated the First Amendment.46
Fighting Words Speech can also lose its protected position when it moves toward
the sphere of action. “Expressive speech,” for example, is protected until it moves from the symbolic realm to the realm of actual conduct—to direct incitement of damaging conduct with the use of so-called fi ghting words. In 1942 a man called a police offi cer a “goddamned racketeer” and “a damn Fascist” and was arrested and convicted of violating a state law forbidding the use of offensive language in public. When his case reached the Supreme Court, the arrest was upheld on the grounds that the First Amendment provides no protection for such offensive lan- guage because such words “are no essential part of any exposition of ideas.”47 This
decision was reaffi rmed in the important 1951 case of Dennis v. United States, in which the Supreme Court held that there is no substantial public interest in per- mitting certain kinds of utterances: the lewd and obscene, the profane, the libelous, and the insulting or ‘fi ghting’ words—those which by their very utterance infl ict injury or tend to incite an immediate breach of the peace.48
Since that time, however, the Supreme Court has reversed almost every convic- tion based on arguments that the speaker had used “fi ghting words.”
Commercial Speech Commercial speech, such as newspaper or television adver-
tisements, does not have full First Amendment protection because it cannot be considered political speech. Initially considered to be entirely outside the protec- tion of the First Amendment, commercial speech has made serious gains during the twentieth and twenty-fi rst centuries. However, some commercial speech is still
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unprotected and therefore regulated. For example, prohibition of false and mis- leading advertising by the Federal Trade Commission is an old and well-established power of the federal government. The Supreme Court long ago approved the con- stitutionality of laws prohibiting electronic media from carrying cigarette adver- tising.49 It has also upheld city ordinances prohibiting the posting of all signs on
public property (as long as the ban is total, so that there is no hint of censorship).50
And the Court upheld Puerto Rico’s statute restricting gambling advertising aimed at residents of Puerto Rico.51
Speech by Public School Students One group that seems to enjoy only a lim-
ited right of free speech is public school students. In 1986 the Supreme Court upheld the punishment of a high school student for making sexually suggestive speech. The Court opinion held that such speech interfered with the school’s goal of teaching students the limits of socially acceptable behavior.52 Two years later, the
Supreme Court restricted student speech and press rights even further by defi ning them as part of the educational process, not to be treated with the same standard as adult speech in a regular public forum.53 In the 2007 case of Morse v. Frederick,
the Court held that a principal did not violate a student’s free speech rights by sus- pending him for displaying a banner proclaiming, “BONG HiTS 4 JESUS.”54 The
decision affi rmed the principle that school offi cials can censor student speech that advocates or celebrates the use of illegal drugs.