Tuesday, May 1, 2012

B.A.F.F.L.E.D. Tops

4 Methods for 1st Amendment Analysis-

The 1st Amendment has been through a lot since its inception.  No way the Constitutional Framers could have conceived so many ways to communicate and state one's freedom of speech.  As the legal field emerged, it has dealt with 1st Amendment issues.  Today, the field must keep up with the variety of ways the law can come into play.

Let's take a look:

1.  The Literal Approach
This method is rarely used today and is somewhat inappropriate for the times.   With all the satire and exaggeration we find so common, taking what is said literally for the sake of regulation is almost unheard of.  This approach originates from the 1st Amendment stating Congress can pass "no law abridging the freedom of the press".

2.  Balancing
Balancing involves weighing the 2 dominant interests of the government and freedom of expression.  Here, as barristers will remember from law school and know from daily practice, rational basis, intermediate scrutiny, and strict scrutiny are the options for analysis.  The outcome of balancing has become increasingly difficult as technology and the means for expressing the freedom of speech have changed.

3.  The Categorical Approach
This approach places the speech in specific classes, like political and commercial, for example.  It can have gray areas, as we have a plethora of avenues for offering "free speech".  Placing the speech into categories can, however be helpful in determining how it may fall in regards to interest balancing or even libel and slander.  Categorical is often one of the most helpful approaches.

4.  Exceptions to Content-Based Regulation
These exceptions are the loopholes which keep commenters out of trouble.  If speech is determined as one of these types, it can usually skirt regulation by the FCC or even the harshest editors.  Regulations which allow the government to discriminate on the basis of the content of the message cannot be tolerated under the 1st Amendment.  The exceptions are:
*National security/threat
*Fighting words
*Commercial speech

Of course the 1st Amendment will continue to evolve as technology and social media do.  The legal field has no choice but to stay on top of things.  

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