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CONTENTS IN BRIEF Preface XIII part one Historical Development 1 chapter 1 Freedom of Speech: The English Heritage 3 chapter 2 Freedom of Speech in America to World War I 17 part two Controls upon the Content of Speech 43 chapter 3 Political Heresy: Sedition in the United States since 1917 43 chapter 4 Defamation and Invasion of Privacy 79 chapter 5 Religio-Moral Heresy: From Blasphemy to Obscenity 119 chapter 6 Provocation to Anger and Words That Wound 166 chapter 7 Commercial Speech 191 part three Special Issues 217 chapter 8 Prior Restraint 219 chapter 9 Special Problems of a Free Press 241 chapter 10 Constraints of Time, Place, and Manner 263 chapter 11 Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons 301 part four Technology and Freedom of Speech 337 chapter 12 Copyright 339 chapter 13 Broadcasting, Cable, and Access Theory 363 chapter 14 The Internet 399 part five Conclusion 429 chapter 15 Approaches to Free and Responsible Communication 431 appendices 453 appendix I The Federal Court System of the United States 455 appendix II Judicial Decision Making: The Two-Level Theory for Testing Freedom of Speech 459 appendix III Glossary of Terms 467 Table Of Cases 469 Index 000 CONTENTS PREFACE XIII part one Historical Development 1 chapter 1 Freedom of Speech: The English Heritage 3 I. Control of Communicators 5 Strict Control by King and Clergy 6 Free Speech as a Parliamentary Right 6 Freedom of Speech Becomes a Civil Liberty 6 II. Control of Content 7 Seditious Libel 7 Private Libel 9 Traditional Religio-Moral Heresy: Blasphemous Libel 9 The Expansion of Religio-Moral Heresy: Obscene Libel 10 III. Technological Constraints: Licensing and Copyright 11 chapter 2 Freedom of Speech in America to World War I 17 I. Freedom of Speech in Colonial America 18 Control of Communicators in the Colonies 18 Control of Content in the Colonies 19 Control of Printing in the Colonies 21 II. The Adoption of the Constitution and the Bill of Rights 21 III. Freedom of Speech in the New Nation: From the Alien and Sedition Acts to World War I 24 Control of Communicators 24 Control of Content 28 Constraints upon Media and Channels 37 Constraints of Time, Place, and Manner 38 part two Controls upon the Content of Speech 43 Chapter 3 Political Heresy: Sedition in the United States since 1917 45 I. From World War I to World War II: Suppressing Political Dissent, 1917-1940 46 "Clear and Present Danger" Is Born: Schenck v. United States (1919) 48 Holmes and Brandeis Dissent: Abrams v. United States (1919) 51 The First Amendment Extended to the States: Gitlow v. New York (1925) 53 The Case of Anita Whitney: Whitney v. California (1927) 55 Two Victories for Freedom of Speech: Fiske v. Kansas (1927) and De Jonge v. Oregon (1937) 57 II. From the Smith Act of 1940 to the Present: The Hazardous Road to Expanded Freedom 58 "Bad Tendency" Still Lives: Dennis v. United States (1951) 60 Increasing the Government's Burden of Proof: Yates v. United States (1957) 63 The Incitement Standard Is Established: Brandenburg v. Ohio (1969) 64 III. Political Heresy: Related Topics 68 Threatening the Life of the President 68 Revealing, without Authorization, the Names of Intelligence Agents 68 Making Antiwar Comments when the Speaker Is an Elected Official 69 Advising Youth against the Draft 69 Compelling Public School Students to Salute the Flag 70 Preventing Political Heretics from Speaking on State College Campuses 70 Criticizing Public Officials 70 Terrorism and the Patriot Act 71 A Special Issue: Incitement to Other Kinds of Violence 73 chapter 4 Defamation and Invasion of Privacy 79 I. Speech That Defames: The Traditional Law of Slander and Libel 80 Definition and Types of Defamation 80 The Slander-Libel Distinction 81 Subjects and Forms of Defamation 82 The Defamation Case 82 The Special Case of Group Libel 85 II. Defamation Law Meets the First Amendment 87 Defamation Law after New York Times v. Sullivan: 1964-1974 87 Defamation Law after Gertz v. Welch: 1974 to Date 95 SLAPPing One's Critics: Using Defamation Law to Chill Public Discourse 101 III. Speech That Invades Privacy 107 Four Types of Invasion of Privacy 107 Defenses in Privacy Actions 112 IV. The Special Issue of Emotional Distress 113 chapter 5 Religio-Moral Heresy: From Blasphemy to Obscenity 119 I. The Religio-Moral Heresy of Blasphemy 123 II. The Religio-Moral Heresy of Darwinism 126 III. The Religio-Moral Heresy of "Immoral" Ideas 129 IV. The Religio-Moral Heresy of "Obscenity" 131 From Rosen to Roth: The Growing Censorship Debate 131 The Landmark Case of Roth v. United States (1957) 133 The Progeny of Roth: 1957-1973 134 Obscenity Redefined and Censorship Reconfirmed: Miller v. California and Four Companion Cases (1973) 141 The Progeny of Miller 147 Censorship: Special Issues and Developments 150 chapter 6 Provocation to Anger and Words That Wound 167 I. Provocation to Anger 168 The "Fighting Words" of Chaplinsky (1942) 169 Terminiello Goes Free (1949) 171 Feiner Goes to Jail (1951) 172 Cohen's Jacket (1971) 174 Gooding v. Wilson (1972) and Progeny 176 II. Words That Wound: Abusive and Threatening Language 179 Abusive Speech in Society at Large 179 Abusive Speech on the Campus 183 chapter 7 Commercial Speech 191 I. Federal Administrative Agencies and Commercial Speech 193 The Federal Trade Commission 194 Other Federal Administrative Agencies 197 II.Commercial Speech and the Constitution 199 Commercial Speech Excluded from the Constitution 199 Let Commercial Speech Flow "Cleanly" and "Freely": The Old Doctrine Reconsidered 200 The New Commercial-Speech Doctrine Developed and Refined 204 part three Special Issues 217 chapter 8 Prior Restraint 221 I. Basic Issues of Prior Restraint 215 Controls on the Distribution of Handbills and Leaflets 222 Controls on the Media 224 II. Film Review Boards and "Public Decency" 226 The Prior Restraint of Film 227 Related Issues of "Public Decency" 229 III. National Security 231 The "Pentagon Papers" 231 The H-Bomb Recipe and The Progressive 232 Government Secrecy Contracts and Directives 233 IV. The Duty to Obey 235 A Law That is Invalid on Its Face 235 Valid Laws Administered in an Unconstitutional Way 235 Court Orders That Constrain Free Speech 236 V. A Preview of Prior-Restraint Issues to Come 236 chapter 9 Special Problems of a Free Press 242 I. Free Press v. Fair Trial 242 Prejudicial Publicity and Prior Restraint 242 Access to the Courtroom 245 Television in the Courtroom 247 II. Reporter's Privilege: The Protection of Sources and Notes 249 Keeping Sources Confidential 250 Police Searches of Newsrooms 252 III. Access to Government Information and Meetings 253 Access to Information 254 Access to Meetings 250 chapter 10 Constraints of Time, Place, and Manner 263 I. The Birth of Free-Speech Rights in Public Places 264 II. The Development of the Open Forum on Public Property 269 The Supreme Court Refines Its Rules 269 Personal Privacy and Safety: The Antiabortion Protests 273 III. The Development of the Open Forum on Private Property 280 Freedom of Speech on Residential Property 280 Freedom of Speech in Company Towns 281 Freedom of Speech in Privately Owned Shopping Centers 281 IV. The Concept of "Speech Plus" 284 Symbolic Expression 284 Labor Picketing 290 The Use of Loudspeakers 290 V. Free Speech in the Public Forum: Special Issues 291 chapter 11 Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons 301 I. First Amendment Rights in the Schools 302 The First Amendment Rights of Students 303 The First Amendment Rights of Teachers 315 The First Amendment and the School Library 320 II. First Amendment Rights in the Military 322 Criticism of the Military or of Government Policy 323 Petitioning for Redress of Grievances 324 Distributing Materials and Holding Meetings on a Military Base 324 Wearing Religious Garb in Violation of the Uniform Dress Code 325 Sale of Sexual Materials on a Military Base 325 III. First Amendment Rights in Prisons 326 Censorship of Prisoners' Mail 326 Media Access to Prisons 327 Prisoners' Rights of Association 328 Censorship of Prison Newspapers 328 Criminals' Profits from Writing about Crime 328 The Right of Prisoners to Assist Other Prisoners in Legal Matters 329 IV. Other Cases 330 Organizations That Receive Government Funding 330 Candidates for Elective Judicial Office 330 part four Technology and Freedom of Speech 337 chapter 12 Copyright 333 I. General Principles of U. S. Copyright Law 341 What Can and Cannot Be Copyrighted 342 Duration of a Copyright 343 Fair Use 344 Works Done for Hire and the Transfer of Ownership 349 Additional Information Concerning Copyright 349 II. Copyright Law and the First Amendment 349 Areas of Harmony and Support 350 Areas of Tension 351 The First Amendment Defense in Copyright Infringement Suits 354 chapter 13 Broadcasting, Cable, and Access Theory 363 I. Broadcasting 364 Broadcast Regulation in the United States 364 Broadcasting and the First Amendment 367 Campaign Finance 380 II.Cable 385 Controls on Cable Content 386 The "Must-Carry" Rules 388 III. Access Theory 390 Mandatory Access to Privately Owned Media 391 The Courts Respond to Access Theory 392 chapter 14 The Internet 399 I. The Supreme Court and the Internet 400 Communications Decency Act: Reno v. ACLU (1997) 401 Child Online Protection Act: Ashcroft v. ACLU (2002 and 2004) 404 Children's Internet Protection Act: United States v. American Library Association (2003) 405 II. The Internet and the First Amendment 407 Political Speech 407 Obscene Speech 409 Defamation and Privacy 410 Commercial Speech 415 Schools and Libraries 416 Copyright 417 part v Conclusion 428 chapter 15 Approaches to Free and Responsible Communication 430 I. Reasons for Freedom of Speech 431 II. Theories of Freedom of Speech 433 III. The Responsible Exercise of Freedom of Speech: A Coordinate Area of Study 445 appendices 453 appendix I The Federal Court System ofthe United States 455 appendix II Judicial Decision Making: The Two-Level Theory for Testing Freedom of Speech 459 appendix III Glossary of Terms 465 Table Of Cases 469 Index 000
Library of Congress Subject Headings for this publication:
Freedom of speech -- United States.