Digital Media Law

Chapter 3:
The First Amendment

Chapter 3 explores the First Amendment, which guarantees freedoms of speech, press, religion, assembly, and petition. These rights are among the most important in American democracy and have profound implications for the media. The chapter examines how courts interpret the scope of these freedoms, what types of speech are fully protected, which are less protected, and which receive no protection at all. You’ll also see how the press functions as a watchdog and how tensions arise when free expression collides with other constitutional values.

Key Concepts in this Chapter

Text of the First Amendment

  • Guarantees freedoms of speech, press, religion, assembly, and petition.

  • Originally applied only to Congress, but since Gitlow v. New York (1925), has also applied to states through the Fourteenth Amendment.

What Counts as “Speech”

  • Includes expressive conduct (symbolic speech).

  • Examples: flag burning (Texas v. Johnson), wearing political armbands, peaceful protests.

  • Courts use a two-part test: (1) Did the conduct intend to convey a message?; and (2) would observers likely understand the message?

The Press as the “Fourth Estate”

  • Serves as a watchdog on government.

  • Both an ally and adversary of political leaders.

  • The adversarial press is essential to democracy, though often under attack.

Protected vs. Unprotected Speech

  • Highly Protected: Political speech, commentary, and news reporting.

  • Less Protected: Commercial speech (regulated more closely).

  • Unprotected: Obscenity, true threats, child sexual abuse material, incitement to imminent violence.

Modern Challenges

  • Attacks on press credibility and accusations of “fake news.”

  • Private platforms (Twitter, Facebook, YouTube) banning political figures.

  • The role of tech platforms and consolidation of speech power.

Right to Receive Information

  • Not just about the speaker — citizens also have the right to access information (Stanley v. Georgia, Pico v. Board of Education).

  • Critical for democratic participation and informed decision-making.

    Test Your Knowledge

    1. Which of the following is NOT a traditional public forum?

     
     
     
     

    2. A content‑based law regulating speech will be upheld only if it is narrowly tailored to serve a ______ government interest and is the least restrictive means.

     
     
     
     

    3. Which Supreme Court case first applied (incorporated) the First Amendment to state governments?

     
     
     
     

    4. The Supreme Court recognized a constitutional right to receive information and ideas in the privacy of one’s home in which case?

     
     
     
     

    5. At the top of the First Amendment protection spectrum sits ______ speech.

     
     
     
     

    6. A government action that restrains speech before it occurs is called a:

     
     
     
     

    7. In R.A.V. v. City of St. Paul, the ordinance was struck down primarily because it was:

     
     
     
     

    8. A ‘true threat’ is defined as speech that communicates:

     
     
     
     

    9. Under the Miller test, whether material appeals to the prurient interest is judged by:

     
     
     
     

    10. Under rational basis review, the burden of proving a law unconstitutional falls on:

     
     
     
     

    11. The Supreme Court’s decision in Mahanoy Area School District v. B.L. involved a student’s post on which social media platform?

     
     
     
     

    12. The test that permits punishment of advocacy only when it is directed to and likely to produce imminent lawless action is known as the ______ test.

     
     
     
     

    13. Restrictions in a non‑public forum must be viewpoint neutral and ______.

     
     
     
     

    14. Which category of expression receives NO First Amendment protection?

     
     
     
     

    15. In Reno v. ACLU, the Supreme Court held that speech on the internet is entitled to ______ protection under the First Amendment.

     
     
     
     

    16. A law that restricts substantially more speech than necessary to achieve its purpose is unconstitutional under the doctrine of:

     
     
     
     

    17. Defamatory statements are generally considered:

     
     
     
     

    18. Reasonable time, place, and manner restrictions in a traditional public forum are evaluated under which level of scrutiny?

     
     
     
     

    19. Which of the following rights is NOT explicitly named in the First Amendment?

     
     
     
     

    20. Content‑neutral laws regulating expressive conduct are usually reviewed under ______ scrutiny.

     
     
     
     

    Ideas for Future Study

    • Press Freedom Today: Explore how current administrations interact with the press — is the adversarial model being preserved?

    • Social Media and Free Speech: Should platforms that dominate public discourse be regulated like public forums?

    • Symbolic Speech in the Digital Age: How might memes, hashtags, or digital activism fit into First Amendment analysis?

    • Global Comparisons: How does U.S. press freedom compare with that in other democracies?

    • Seditious Libel History: Consider the historical arc from the Sedition Act of 1798 to today’s rhetoric about “fake news.”

    Parting Thought

    The First Amendment is designed to protect not just popular speech, but also speech that is uncomfortable, offensive, or unpopular. Do you think our democracy is strengthened or weakened when the press and the public push against the boundaries of free expression?