Today, writers, photographers, musicians, entertainers, commentators, and even the average Joe uploading material on Web sites like YouTube test the limits of First Amendment protections of free speech when they author and broadcast thoughts, actions, and reactions in print, over the airwaves, and through the Internet. Increasingly, many people question whether there are limits to what you can say to and about others. Americans value freedom of speech more than other fundamental rights in many ways. But it is the duty of courts to determine when basic constitutional protections must bow to protect the welfare, health, and safety of society, is it not? And as such, what should happen to people who test those limits? Should they be demoted or fired from their jobs in the media if they cross certain lines with their speech? Should entertainers, like comedians, singers, songwriters, and media producers, be fined for foul language and sexually graphic lyrics? Should private citizens who post offensive material on the Internet be held accountable if their postings incite others to commit violent or demeaning acts? How do we acknowledge and protect our fundamental freedom of speech, yet protect children from harmful content which they may easily access through television, radio, and the Internet? Freedom and culture seem to collide when it comes to the discussion of First Amendment protections. The articles in this Issue concern difficulties intertwined in today’s culture expressions and fundamental freedoms.
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There are many factors that make a country’s culture what it is. Two of the most important are the use of the State’s police power to protect public morality and the moral influence of religion. The United States Supreme Court, since at least the Warren Court, has interpreted the First Amendment’s speech and Establishment of Religion clauses in ways that are not only seriously incorrect but that played, and continue to play, a major negative role in the decline of American culture. Other factors are involved, but the courts have severely damaged the ability of State and Church to retard the advance of those other factors or perhaps reverse them.
In The Decline of American Culture: The Role of the Federal Judiciary, Professor Thomas Marks suggests that several federal court opinions overturning regulations against certain swear words in broadcast media have in part caused a general decline in public morality. Most recently, in Fox Television Stations, Inc. v. Federal Communications Commission, the United States Court of Appeals for the Second Circuit invalidated a Federal Communications Commission (FCC) rule change regarding “fleeting expletives.” The FCC had expanded the previous rule by imposing a fine on broadcasters who used certain swear words in an “isolated, non-literal, fleeting” manner. Against a dissent by Judge Leval, the panel majority held that the rule change was not properly explained and was therefore “arbitrary” under the Administrative Procedure Act.
A man’s tooth is extracted with a pair of pliers. A second man eats a frog. Still, another man’s hair is intentionally set ablaze. These are not the sadistic human experiments performed on concentration camp inmates by Dr. Josef Mengele. Rather, they are real, videotaped events of homeless people engaged in dangerous and degrading acts for the price of a drink or a bottle of alcohol. For the producers and distributors of Bumfights, the performance of dangerous, live stunts by the homeless is entertainment that earns multimillion-dollar profits.
Echoing the sentiments of Justice Felix Frankfurter when he first decried relying on reflex over reason in the Court’s treatment of free speech cases, Stanley Fish and other scholars have argued that there is “no such thing as free speech,” by which they mean that there is no principle of free speech. Fish’s attack, however, differs from the common complaint that the standard justifications offered in this country for a principled protection of speech do not tell us why speech should have a greater degree of immunity from regulation than any other form of conduct causing harm or offense, or, if these justifications do tell us why, cannot account for the extent of the current protection we now offer to speech. These are very well-known problems, and Fish is not particularly interested in them. Instead, his claim is that any justification offered for the protection of speech, any answer to the question “what is speech for,” will necessarily fail as a principled justification. To answer the question “what is speech for?” at all, he says, is to join “the regime of censors.” There will always be speech that subverts whatever purpose we attribute to speech and that speech we will not tolerate. Instead of a principle, then, what we have is a political determination, a choice between warring political policies, through which we give the name “free speech” to whatever speech serves the winner’s purposes.
When the Supreme Court handed down its 1978 ruling in Federal Communications Commission v. Pacifica Foundation, it upheld the authority of the Federal Communications Commission (FCC) to regulate indecency on the public airwaves. Unfortunately, the Court gave the agency relatively little guidance concerning the definition of “indecency,” a point that George Carlin made repeatedly during a 1973 monologue that, ironically enough, was the subject of the ruling. But a clear message that the Court did deliver to the FCC and to licensees was that Carlin had successfully identified seven words that the FCC could regulate on broadcast television and radio.
We have now lived with Pacifica and Carlin’s insights for three decades. In this Article, the Author would like to make some suggestions concerning the importance of the points Carlin made in his monologue entitled Seven Filthy Words. Further, given the recent Second Circuit ruling in Fox Television Stations v. FCC, the Author urges the FCC to revisit its current indecency policy, which seems to have become increasingly unworkable.
Bleeding, battered, many missing shoes or other articles of clothing, the girls, some as young as ten, none older than sixteen, were stolen away under the cover of nightfall, hauled out of town, and secretly transferred to a dilapidated stockade in a remote corner of the countryside. There they would be held, under lock and key and at gunpoint, for forty-five days without proper meals, water, sanitation, beds, or medical treatment. This is not the story of human-rights violations in an unstable, war-torn nation in some far off corner of the world. It is the story of a group of now grown women dubbed the Leesburg Stockade Girls, who, as adolescents in Americus, Georgia, at the height of the Civil Rights Movement, were arrested during peaceful demonstrations and held, some for nearly two months, in deplorable, inhumane conditions despite their youth and vulnerability.
On the anniversary of the abduction of Adam Walsh, President George W. Bush signed the Adam Walsh Child Protection and Safety Act on July 27, 2006 (Adam Walsh Act). One of its more well-known purposes is to create a National Sex Offender Registry by incorporating data from state sex-offender registration systems. A lesser-known purpose of the Adam Walsh Act, and the subject of this Article, is set forth in Title 18 Section 3509(m).3 This Section states that the government must remain in possession of child pornography seized in connection with the offense, and the court can deny a defendant’s request for duplicating the evidence “so long as the Government makes the property or material reasonably available to the defendant.”
The City, County, and Local Government Law Section of The Florida Bar and the Stetson Law Review are pleased to present the Twenty-Fourth Edition of the Local Government Law Symposium. This Symposium continues a long-standing tradition of providing the legal practitioner with articles, practical advice, and case digests covering a wide spectrum of subjects relevant to the practice of local government law.
As a result of negotiations during the 1995 legislative session involving environmentalists, agricultural interests, state and local governments, land owners, lobbyists, and legislators, the Florida Legislature enacted a two-part property-rights initiative consisting of both the Bert J. Harris, Jr. Private Property Rights Protection Act (Harris Act) and the Florida Land Use and Environmental Dispute Resolution Act (Dispute Resolution Act or Act). Although these two acts were enacted simultaneously under the same bill, the Legislature did not intend for these Acts to be construed in pari materia, but to operate independently, stating that these Acts would “have separate and distinct bases, objectives, applications, and processes.” Notwithstanding this express provision, these Acts express the Legislature’s fundamental concern that private property rights in the state of Florida should not be subject to unfair decisions, unreasonable burdens, or inordinate burdens.