Final Paper

Running Head: FREE SPEECH? 1
What is protected as Free Speech?
Connie Butts
JRN 410 Journalism Law
Instructor: Michael Angelo
May 18, 2015

What is protected as Free Speech?
As a citizen of the United States there are few things considered as important as the
freedom of speech which is guaranteed by the First Amendment. However, few citizens
understand exactly what is protected as free speech and what is not. It would be reasonable to say
if one hundred people were asked what is protected as free speech, a variety of answers would be
given that covers individual thoughts on what should be covered, ranging from the basics of
conversation to the ability to say anything regardless of the harm caused. This indicates the need
to have a definition of what is covered as protected speech. Never was this need as apparent as in
the early days of the Civil Rights movement when ideals clashed and tempers flared in view of
differences in race and social backgrounds. This led to many fights, both physical and legal, that
set the framework that defined exactly what protected speech is according to the law, as well as
the degree of protection one can expect from the law if they suffer damage from malicious
unprotected speech. Landmark cases were fought and won and the court rulings in conjunction
with one another have defined a method by which the law has become a “way for society to
organize itself under, or by a set of beliefs that are constitutive of society.” (Carroll, 2012) These
rules, or beliefs, will be considered along with the ways they have impacted society and
contributes to free speech, as well as provides protection for persons that have suffered from
slander or defamation that was inflicted in a malicious manner. Realizing that free speech is
indeed a gift and using it in an honorable manner by avoiding unfounded allegations and
inflammatory speech that incites wrongdoing in both private and public, demonstrates that we
seek to guard that gift and protect it as good stewards.
One of the landmark cases that set precedent in defining what is and is not protected as
free speech was the court case of Sullivan vs. The Times which resulted from civil unrest that was

experienced in the early days of the Civil Rights movement. This case was brought forward by
the Montgomery, Alabama police officials because they felt they were libeled by The New York
Times when they published an article on March 29, 1960 that leveled charges “against public
officials in the South who, had used violence and illegal tactics to try to quell the peaceful civil
rights struggle.” (Pember, 2013) A trial court ruled in favor of the Montgomery police officials
but the Supreme Court overturned the verdict, thus giving an outstanding victory to the First
Amendment right to freedom of speech. Justice William Brennan determined in his decision that
freedom of speech included the right of the people to criticize public officials, and in order for
them to be awarded damages for libel they must be able to prove actual malice, thus
demonstrating there was “a knowledge of falsity or reckless disregard of whether the material
was false or not.” (Pember, 2013) Brennan ruled that the burden of proof had not been met in the
case. It is clear that the Supreme Court used its power to “determine the limits of constitutional
protections of speech, press, and association when challenged or threatened by state laws” in this
case. (Carroll, 2012) His ruling provided the guideline that public officials have a higher burden
of proof than private citizens because they hold a position that exposes them to public scrutiny
and debate over their fitness to hold that position of power and gives the people voice in public
affairs. This case also demonstrated that the Supreme Court’s authority to reverse decisions made
by lower courts.
Although the issue raised in the Sullivan case had been settled, public officials in the
South still made efforts to squash the public voice in the Birdsong vs. Curtis Publishing. T.B.
Birdsong, head of the Mississippi Highway patrol, filed a libel suit against Curtis publishing
stating that “he and his men were libeled about their failure to take control of the deteriorating
situation” that took place when an attempt was made to desegregate the University of Mississippi

in 1962. Violence broke out that left two people dead and 160 Federal Marshals injured. In the
article later written What Next in Mississippi? The statement “those bastards left us” and that
when the violence began that they “quietly melted into the crowd leaving deputy marshals,
border patrolmen, and prison guards to deal with the chaos” were printed and damages were
sought and denied because it had already been determined that citizens were free to criticize the
government for the perceived failure to perform their duties. (Edmondson, 2011) This
determination further solidified the Supreme Court’s previous ruling.
On the surface it appears quite simple how the Supreme Court formulated the criteria that
is in place today to protect the freedom of speech, but there is a great deal more under the
surface. Actually, in order to be successful in winning a libel suit, especially if you are a public
figure, there are several criteria that must be satisfied. First of all, the information presented must
be false, second, it must be defamatory (cause public ridicule or embarrassment or cause a
person to be viewed in a negative way), third, must be spoken or written to a third party, and
fourth, must be financially damaging to the person being considered (unless the comments are of
a special nature. (Carpenter, 1992) Special nature comments do not require financial damages
and they include untrue comments about crimes of moral turpitude, unchastity, loathsome
disease, and professional misbehavior. (Carpenter, 1992) In the case of Sullivan and Birdsong
these criteria were not met because they were either based on opinion or eyewitness accounts and
there was no proof of actual malice.
The Supreme Court showed itself to be the highest public servant by making
differentiation between public servants and private citizens when considering burden of proof in
regard to libel suits. The court acknowledges that public officials or public figures “voluntarily
step into the spotlight, inviting attention and criticism and thus assume the risk of defamation”

from society simply due to their visual status. (Bunker, 1998) The court also acknowledged that
private citizens live out of the spotlight and thus deserve greater protection under the law in
regard to being libeled. By handling individuals according to their status, the court enforces the
right to free speech, acknowledges the responsibility encompassed in being of public status, and
shows the need for covering conflict in a balanced and fair way. We see demonstration of this in
the rulings found in the Sullivan and Birdsong cases. Although precedent has been set by the
court, each case must be viewed on its own merit and judged on that. This being the case,
different courts may reach different judgments based upon extenuating circumstances that make
each case unique. (Edmondson, 2011)
In cases of rioting and civil unrest a person may be found libel if they use public criticism
of the situation to incite lawlessness or incite further unrest or violence. This would be an
example of extenuating circumstances that the court would consider when ruling in a libel case.
(Pember, 2013) This type of story is feverishly sought due to its newsworthy nature and coverage
of such stories happen very fast, not allowing the journalist to thoroughly think through the
correct steps when covering them. These conditions must be weighed carefully by the
responsible journalist and every effort to pursue the truth in a balanced and fair manner must be
the goal. Bringing newsworthy stories to the people can become complicated especially when
such dire and dangerous circumstances exist. Many times the necessary precautions are forgotten
or overlooked in the attempt to get the unadulterated truth during critical events and that can land
a journalist or reporter in trouble.
There are many things the journalist must keep in mind while fulfilling their job duties,
realizing that their freedom of speech is a small part of a larger puzzle. They must keep in mind
the absolute need to seek the truth and present it in a fair and balanced way while covering

conflict and controversy. They must also consider the standard of fault that must be proven if
allegations of libel should arise. When covering a story about private citizens it is much easier to
be convicted of libel because proof of actual malice is not necessary. Then realizing that
potential problems that could arise makes it paramount that journalists abide by the code of
conduct designed and written for professional journalists. This code of conduct dictates that
fairness be exemplified in a story and that “fairness refers to presentation of statements from
principles in the story” and these should be based on fact. (Simon, 1989) There should also be
consideration of the relationship of fairness and balance to the type of controversial story that is
covered, the appearance of any defamatory statements, and the medium the story will be
presented in. (Simon, 1989) When a controversial story is covered, the type of alleged
wrongdoing must be weighed against facts rather than unsubstantiated accusations.
The field of journalism must also recognize that covering a story could possibly cause
harm to the subject of a story or those in association with them. Keeping this in mind will move
the responsible journalist to cover the story in a manner that reflects the truth without
intentionally trying to malign or degrade anyone, do extensive research to ensure the basis for the
story is indeed factual, and stick to the provable facts as much as possible. When the facts prove
actual wrongdoing has taken place it should be reported in a professional and fair way that
supports the facts while showing proper respect for those involved and avoiding inflammatory
statements, and care should be shown not to incite the public to avenge wrongdoing regardless of
how extensive it might be.
The information covered thus far illustrates the need of a journalist to keep many things
in mind while presenting true and fair information to the public. The rulings or precedents that
have been set forth by the court gives guidelines upon which these things are based. They

demonstrate that a journalist consider not only their right to free speech but their subject, the
status of the person or group the story is about, covering the story in a truthful, accurate, fair, and
balanced way, the harm a story could cause a person or group of people, and the potential legal
complications that could arise from covering a story. This moves the professional journalist to
keep opinion statements to a minimum although the doctrine of fair comment allows them if they
are based on fact (Davis, 1994). It could become a slippery slope situation if a journalist
habitually made opinion statements because they could fall into the trap of personally attacking
an alleged wrongdoer and suffer the consequences of the action.
Reviewing the landmark court cases and their precedents’ remind us how important our
right to free speech really is. Many countries are not afforded this right at all and people fear
punishment from their respective governments anytime they speak out against injustices. Sad to
say, people here take it for granted many times on a daily basis without giving any thought to the
people who made it possible. The fact that the Supreme Court has upheld the right of every
citizen to speak freely without fear of governmental retribution speaks volumes about how
precious this gift we enjoy truly is. Individuals enjoy the right to speak freely, make opinion
statements and openly criticize the government when they disagree with its policy or actions. All
groups regardless of background enjoy this same freedom without prejudice. Society as a whole
is free to express themselves without fear from governmental oppression regarding statements
that may be negative. The right that was insured by the First Amendment and backed up by the
Superior Court is indeed a valuable gift that must be protected and cherished.
We have also been granted great leeway in what is allowed as protected as free speech.
The type of speech that falls into the category that is not protected is very hurtful, derogatory,
and of no benefit. Some of the speech that is unprotected includes intentionally lying about

someone, speech that is directed for the purpose of causing another embarrassment, ridicule,
intended to ruin a person’s reputation or put them in a bad light, hate speech that incites the
commission of crime or furthers riots or civil unrest, and speech intended to damage another’s
reputation or to bring intentional harm. (Pember, 2013) This allows everyone the ability to
express themselves openly, even in critical situations when individuals feel the need to speak out
against anything they find offensive or disturbing. We have great freedom of speech and
expression and therefore the responsibility to protect it.
There are those who misuse this gift and put the future of this freedom in jeopardy
whether deliberately or unintentionally. The most common way in which this freedom is misused
is in the defamation and libeling of others. Stories that are newsworthy often are messy and are
riddled with raw or harsh facts. (Pember, 2013) Great tact must be exercised when covering such
stories. Even the harshest story can be handled with tact and be presented in accurate, honest,
balanced and fair way if proper precaution is taken in covering the story. It is helpful to consider
the potential consequences when tempted to make negative opinion statements even when moved
emotionally about situations that are unjust or shocking to a normal person. This will cause the
good journalist to present an accurate, honest, and balanced story, realizing there is a humane
way to cover any story regardless of how offensive it may be.
We have considered a dark time in human affairs as it stood during the early days of the
Civil Rights era along with precedents that were set and still stand until our day. (Pember, 2013)
People were willing to be beaten and pummeled simply to embrace and enjoy the same freedoms
as their Caucasian counterparts and those same freedoms were made clear to apply to all
Americans. We have seen how these court decisions carved out the criteria upon which libel
cases are judged. Differences between public officials or public figures raising the burden of

proof regarding libel based upon their voluntary places in the spotlight that puts them at greater
risk of defamation and requires them to prove actual malice in order to win a libel case. (Bunker,
1998) These differences give private persons more protection under the law by not imposing this
burden upon them. The guidelines to prove libel were deliberated and intentionally left lax
enough to allow for the greatest freedom of speech possible while offering protection for those
who were unduly injured by the misuse of this freedom by using malicious, hurtful, or defaming
speech.
Journalists’ were also given self-imposed criteria upon which to operate that put in place
a protection for themselves and others in order to ensure they are ever cognizant of their duty to
the public, as well as those they may need to cover in a news story. We can truly see how these
court rulings in conjunction with other rules put in place have defined “a method by which the
law has become a way for society to organize itself by a set of beliefs that are constitutive of
society.” (Carroll, 2012) These rules or beliefs, including the belief that all persons should have
freedom of speech, and how they have impacted society in a positive way has been demonstrated
by the laborious way the courts have striven to see that all citizens enjoy this precious freedom.
Penalties were set in place for those who would intentionally abuse others by misusing this
freedom and there is protection for individuals who suffer from slander, defamation, and
malicious speech.
Considering the hard work that paved the way for our precious freedom of speech along
with the countless masses who have fought and died for it, we should always strive to use it with
honor and pride in the building up and education of others. The truth should be presented in an
unbiased way that is fair and respectful toward all. The guidelines that were so carefully carved
out for the welfare of all, regardless of status in life, education level, or ability are to be held with

high esteem and respect. Journalists have a very honorable position because it is their duty to
properly use and care for this great freedom in bringing needed information to the people.
Holding to truth based on fact and delivered with accuracy is a demonstration that this freedom is
dear to the heart and mind of those responsibly entrusted with this privilege. Using this special
gift in an honorable manner by avoiding unnecessary or unfounded inflammatory allegations
against others regardless of where we may be proves ourselves as a public servant who truly
appreciates the marvelous freedom we have, which is the freedom of speech.

Reference:
Bunker, M. D., & Tobin, C. D. (1998). Pervasive public figure status and local or topical fame
in light of evolving media audiences. Journalism and Mass Communication Quarterly,
75(1), 112-126. Retrieved from
http://search.proquest.com/docview/216927712?accountid=32521
Carroll, B. (2012). New York Times v. Sullivan: Civil rights, libel law and the free press.
Journalism History, 37(4), 251. Retrieved from
Carpenter, L. J. (1992). Legal issues: Defamation. Journal of Physical Education, Recreation &
Dance, 63(1), 12. Retrieved from
Davis, C. N. (1994). Libel and statements of opinion before and after Malkovich. Newspaper
Research Journal, 15(3), 105. Retrieved from
Edmondson, A. (2011). In Sullivan’s shadow: The use and abuse of libel law arising from the
civil rights movement, 1960-89. Journalism History, 37(1), 27-38. Retrieved from
Pember, D. R. & Calvert, C. (2013). Mass media law (18th ed.). New York, NY: McGraw-Hill.
Simon, T. F., Fico, F., & Lacy, S. (1989). Covering conflict and controversy: Measuring
balance, fairness, defamation. Journalism Quarterly, 66(2), 427-434. Retrieved from

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