The freedoms that are guaranteed by the First Amendment are extremely important for the free exchange of ideas in our society. Though, these freedoms are not absolute. Judges have decided that certain categories of expression are legally unprotected (Katsh). The same can be said for college campus who have enacted free speech codes, which limit the freedom of speech to college students. The difference of protected speech and unprotected speech can become hard to differentiate. In this paper I am going to examine how the freedoms of the First Amendment are relate to a supreme court case, college speech codes, and pornography. Showing how hard to tell the difference of protected and unprotected speech can be seen in the court case of Elonis v. United States (2015). Anthony Elonis was arrested for making threats on Facebook towards his ex-wife, co-worker, and a FBI agent (Katsh).
Anthony Elonis defense in trail was the First Amendment and how he never held the intend to actually carry through with the acts he described in his post. The main question in this court case is that is the state required by the law to prove that Elonis actually intended to threaten someone or is it that any reasonable person would find the posts threating. During the trail a judge told the jury that they could find Elonis guilty if an average person would find his post to be threating (Katsh). Elonis argument against this calm is that the jury could find him guilty of a state of mind he never actually had. Though, When a bomb threat is made towards a school for an example this threat is taken very seriously regardless of the actually state of mind of the threat maker. Even if Elonis truly meant his Facebook post to have a different meaning that doesn’t change the fact that his posts inflicted fear and disruption into someone’s life The First Amendment does not protect your speech just because you may believe that your words do not mean what they say (Verrilli).
The state should be required to prove if the defendant made a “true threat”. You should not be punished for exaggeration or other means of hyperboles. Juries should be able to tell the differences between a strong over exaggerated expressions of emotion and statements that carry intent to intimate or disrupt life. Elonis compares his posts on Facebook to lyrics in rap music, but after you look at the context, effect, and how specific the posts were there is a vast difference between Elonis Facebook posts and rap music. A jury would be able to weigh the differences between a serious “true threat” like one done by Elonis or a lyric from a rap song. Elonis was aware of the meaning of the context on his Facebook post and the intent to do harm was there, I am confident a jury would see the same thing. The problem with the reasonable person standard or theory is that it can be extremely vague and unpredictability.
When you us this standard you are bringing in a third-party and you are using their reaction which can discriminate against unfamiliar viewpoints. Since you don’t know how this third-party will act then in essence you are removing the certainty that their words are lawful. The jury will have to judge the words of the speaker months or even years after the words have been spoken. The first amendment is designed to protect speakers from discrimination from their unpopular viewpoint. So this reasonable person standard can result in convictions just for poorly chosen words. There is many different types of platforms for speak because of modern day technology. By the increase of platforms for speakers this has multiplied the chances of miscommunication. When you write an email or a Facebook post you are removing that ability to read the tone, facial expression, and context. The speaker may not be able to see the reaction of the reader, which then the speaker could not clear up any miscommunication. If you use the current “reasonable person” theory you are allowing any violent subject that is discussed open to the possibility of it being tied to a person and the person being prosecuted. This same idea can be related to music lyrics from different artist. In this modern era music artists from the genre of rap have been pushing the envelope in the lyrics that are spoken. These lyrics are fully protected by the First Amendment even if they are hateful or offensive.
How can it be allowed that a rapper can express a fantasy about killing someone in a song, but if a person post on Facebook about a fantasy about killing someone he or she could be reprimanded. To protect the defendant from being wrongful convicted the courts should look for proof of subjective intent to harm an individual. By using the subjective intent standard you are not violating the First Amendment right. The standard would force the court to find the statement to be intended to cause bodily harm on an individual. College speech codes are designed to protect students and give them a safe place to be educated. Though, are these speech codes limiting the speech of speakers who voice disrespectful or offensive in the eyes of the majority. A poll conducted by the Brookings institution found that nearly one in five students thought it was ok to use violence against speakers who say offensive and hurtful things (Shapiro). This study shows that young college students are deciding who should be allowed to receive free speech One of the amazing things about attending a college is that you are supposed to be given the opportunity to hear many different viewpoints of an issue. The First Amendment was designed to protect speech for everyone even of the majority does not agree with what is being spoken.
Colleges are using speech codes to pick which group will be protected for their speech and which group will not be protected. This is allowing students to think it is ok to suppress certain peoples voices just because it is offensive, which is putting the First Amendment greatly at risk. When these students enter the “real world” after college they will have a hard time understanding the free market of ideas. Colleges should focus not on banning speech, but on adopting a range of measures that punish conduct and behavior that is no longer civil (aaup). Colleges should educate and stress the importance of offensive speech so the students will have an increase of understanding. Colleges need to express the importance of freedom of speech, but also highlight the harm that uncivil or violent speech inflicts. Students may need the speech codes that are held by the colleges because the students are to immature. Students that come to college are coming from different educational backgrounds. They have a hard time telling the different between their opinion and a fact. The class is not going to learn anything if one student is sitting there expressing his or her opinion on gun control because the idea is to educate students about academic texts or philosophy (Posner). The students do have a right to express their opinions, but the faculty member should try to guide the students so that the comments that are being made are useful.
The most important aspect of college is that everyone is able to learn and if certain students feel intimidated to speak up in class because an ideological argument has broken out I class then learning is not being fulfilled. For example, if a student starts talking about “white supremacy” in a class about black history the other students will have a hard time learning about black history. Many students do not come to college prepared to handle controversial topics because their mind is still developing, so it is the colleges duty to keep advancing the autonomy of the student (Posner). Speech codes can also help protect certain groups of students from “fighting words” which are not protected by the First Amendment. These speech codes help send a message to students we have feelings of hate towards certain minority groups who attend the school. The speech codes help stop violent hate crimes before they start because you are putting consequences to threats. For all students the college needs to create a safe learning environment and by putting speech codes into place you are creating a safe learning environment. Colleges need to and should want to create a diverse population in its student body, faculty, and administration. By creating a more diverse population you are allowing more viewpoints to be shared, which will increase intelligent and lower ignorance. Though, if these speech codes are not in place many different minority will be less inclined to apply to the college. One of the biggest problems with pornography is that it is very hard to define. The two types of pornography that receives no First Amendment protection is obscenity and child pornography (Hudson).
The problem is how do you define what pornography went too far and ended up into when of these two categories. If you say nudity is equal to obscenity then many pieces of art and movies will be outlawed. The supreme court come up with guidelines for jurors in obscenity cases after the decision of Miller v. California (1973) (Hudson). The guidelines that were formed still made it extremely hard to define obscenity. After the guild lines came out the court was forced to reason that individuals could not be convicted with obscenity charges unless the material is patently offensive hard core sexual conduct (Hudson). The problem that arises here is how do you come to common ground on what is too hardcore. The other hard category to define is child pornography. The courts made it a point to try and end the distribution of child pornography.
