Theories of Interpretation

by   |  05.28.09  |  First Amendment, Supplemental Information

1. ABSOLUTISM: Miami Herald v. Tornillo (1974), which tested the Florida right-of-reply law, 9-0, teaches that the First Amendment does not require fair and responsible speech and that the right-of-reply law was unconstitutional.

2. PREFERRED POSITION: Inspite of false elements in an ad criticizing an Alabama police official, the New York Times v. Sullivan court (1963) preferred, 9-0, the First Amendment protection of the press when they criticize public officials.

3. MARKETPLACE OF IDEAS: R.A.V. v. St. Paul (1992) dealt with a ban on hate speech by a St. Paul ordinance. The court ruled, 9-0, “The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” The MARKETPLACE OF IDEAS can handle this truth-falsehood tournament.

4. POLITICAL SPEECH: The Papish v. Board of Curators of the University of Missouri et al. (1973) 6-3 majority applied this theory to reverse the 8th U.S. Circuit, which had upheld the university’s right to expel a student for distributing a campus newspaper with a political cartoon of a policeman raping the Statue of Liberty and the Goddess of Justice.

5. RELIGIOUS SPEECH: Church of Lukumi Babalu Aye v. Hialeah (1993), 9-0, taught that animal sacrifice cannot be banned if it is a tenet of a church’s beliefs. The court said, “The Free Exercise Clause protects against governmental hostility which is masked as well as overt.”

6. BALANCING: Marsh v. Alabama (1946) balanced First Amendment rights against private property rights, and the court voted, 5-3, that Marsh’s press and religion rights outweighed property rights of a company that owned the town of Chickasaw. Jackson took no part in the decision.

7. SPEECH V. ACTION: United States v. O’Brien (1968) teaches, 7-1, that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Marshall did not participate in the opinion.

8. FORUM: Marsh (see BALANCING) held that a company-owned town was the functional equivalent of a public municipality. Cities that open public forums cannot deny First Amendment access to these forums. In Southeastern Promotions v. Conrad (1975), Chattanooga could not deny access to a nude-stage performance, Hair, because it leased an auditorium turning it into a public forum. The vote was 6-3, and the Forum Theory is erratically applied.

9. ACCESS: Miami Herald v. Tornillo (1974), 9-0, invalidated a Florida right-of-access to newspapers law. The Herald had refused to run a candidate’s letter. The court wrote, “…press responsibility is not mandated by the Constitution….”

10. 14TH AMENDMENT: In Gitlow v. New York (1925), the court ruled, 6-2, that each state could imprison a citizen for teaching violent overthrow of the government; this does not apply today because of later court decisions. However, the most important element of Gitlow is its role as precedent that still permits the U.S. Supreme Court to use the 14th Amendment as a door to enter and weigh issues of constitutionality of laws of the individual states.