Communication Law Case Study

This case involves the guaranteed basic civil liberty of freedom of speech, and the ability to exercise this liberty without fear of retribution or censorship. The United States' Constitutional Bill of Rights guarantees this civil liberty, in the First Amendment. Since the freedom of speech amendment includes the right to free speech without fear of retribution, a decision in favor of the Plaintiff is assured.

Case Background

The Plaintiff (AKA the part-time mayor, and publisher/editor of the local newspaper) voiced her opinion in a published editorial regarding the tactics of an Army Recruiter who she felt was not giving completely honest advice to the high school students he was actively and aggressively recruiting. She believed that he was not giving the complete picture to these students, and that they were not making informed decisions based on all the facts. Whether a student chose to join the Army or not was beside the point; She just thought they deserved to have all the facts before making that important decision, and should not be given false promises to entice them to join.

The Defendant (a political rival) saw this editorial as non-patriotic and sought to have her removed from her mayoral office and duties. He also started a smear campaign to hurt her reputation in the community and to cause advertisers to no longer want to advertise in her paper.

Case Argument

The right to voice an opinion is a very important civil liberty that cannot be taken lightly, or for granted. The voicing of differing opinions can be the catalyst for positive change in all aspects of American life. Trying to silence opinions that you don't agree with violates the very platform that our freedom of speech right was founded on. You can disagree with an opinion, but legally you can't "punish" someone for having one that differs from your own, nor can you insist that others punish that person too. For that matter, you cannot force someone to change their opinion simply to match your own, "or else." This is a free country, after all.

This political rival should have sent in his own editorial if he disagreed with the opinion voiced by the mayor. Contrary to popular belief, disagreements and discussions are usually positive things, not negative. These disagreements and discussions could potentially lead to a better understanding of one another, improved policies and regulations, and a positive shift for the entire community - not to mention improvement for how the high school students are treated by these recruiters. Knowledge is a powerful thing, and if the councilman thinks that these students are better off without having a complete picture of what their life may entail after enlisting, then he must believes the prime importance is to better the military at the cost of the people doing the actual work.

These students will be entrusted to protect our country and our way of life. If they find out eventually that they have been lied to or misled, what sort of loyalty will they feel towards our country? We live in a democracy, and there currently is not a draft - so anyone who signs up to join the military should be doing so of their own free will, with all the knowledge they need to make such an important personal decision. As a country, we're all counting on that. We need these kids to know exactly what they're getting themselves into, and to accept that great burden with that full knowledge. Anything less, is exactly the "unpatriotic" the councilman accuses the mayor of.

The mayor was doing what she felt was her patriotic duty to make sure these kids knew what they were getting into. She believes that some of these kids are being misled by false promises and unrealistic expectations of military life, which is enticing them to join when they maybe would not have had they been given the full truth of the situation. To believe an injustice is occurring and not doing anything about would be the true meaning of "unpatriotic."

The freedom to say or print something that is accepted by virtually everyone is not a risk; but the freedom to say or print something that may not be popular is what's most important to protect. As Rep. Mark B. Cohen of Philadelphia once said, "Freedom of speech which is limited to freedom to say whatever a majority of the Pennsylvania legislature agrees with is not real freedom of speech."

Each state has their own interpretation of this basic right, with some states offering more leeway than others. Depending on which state this scenario happened in, different rules and regulations may apply.

In further evaluating this case, one of the obvious issues to consider is if the content of the mayor's expression in any way breeches the peace or could promote violence, which could cause the decision in the case to fall to the Defendant if so. In considering this, the ability to compare the voicing of the mayor's opinion to a speech act such as yelling "fire" in a crowded theater is difficult to imagine. One is done for the purpose of protecting students from unfair practices from an unscrupulous recruiter, and the other is done for the purpose of causing wide-spread panic and distress. The two examples are obviously not on an equal plane.

Also important to consider is the relative importance of the information to the public as opposed to the importance for the councilman to keep the opinion quiet. Which objective is more important? Which objective holds more merit? Which issue overrides the other? I would argue that in most cases like this, the importance of the information getting out to the public far outweighs the needs of the councilman to keep it quiet. The councilman sees this information as dangerous, and maybe thinks that by it coming out will negatively affect the military and its ability to do its job of protecting our country.

The larger issue here is that it is not legal to cover up "unpopular" truths in order to augment the recruiter's tallies on his enlistment agenda. Using non-legal tactics is not an acceptable practice, no matter what his motives are (though it's doubtful that his motive is a legitimate desire to increase the country's enlisted personnel).

The councilman appears to assume that no matter how it's done, increasing the numbers of the military makes the means acceptable for the desired end result, and any opinion otherwise is un-American.

Since the mayor had a simple disagreement with this view, she had every right to make her view known.

Case Law

The balancing test as discussed in RANKIN ET AL. v. McPHERSON, 483 U.S. 378 (1987), says that speech must be "...fairly characterized as constituting speech on a matter of public concern." In this case the public concern is the way in which the military recruiter was approaching the high school students, which are most certainly a public concern. In addition, in further discussing the balancing test, it was stated in the same case that the speech must be evaluated to see if it "impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." As mayor, her duty is to her public, which includes the high school students she feels compelled to protect. The Defendant would have to "demonstrate a state interest that outweighs [the mayor's] First Amendment rights," and in this case that would be difficult indeed.

From KEYISHIAN v. BOARD OF REGENTS, 385 U.S. 589 (1967), we see that Justice Brennan referenced, "The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Simply because she is also the mayor does not mean her free speech rights are not protected.

In PICKERING v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205, WILL COUNTY, 391 U.S. 563, (1968), Justice Marshall said, "The public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity." It is true that this case does not deal with the legal issue of defamation, but the basic meaning of what was said holds equal importance and relevance in this case regarding the "public interest of having free and unhindered debate on matters of public importance..."

An interesting summary of Supreme Court decisions is found in R. A. V. v. City of St. Paul (90-7675), 505 U.S. 377 (1992), where it said, "NEW YORK TIMES CO. v. SULLIVAN, 376 U.S. 254 (1964), and DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC., 472 U.S. 749 (1985), establish that the level of protection given to speech depends upon its subject matter: speech about public officials or matters of public concern receives greater protection than speech about other topics." Obviously this applies to this case as well since the matter revolves around matters very important to the community at large.

Case References

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rankin.html

http://www.bc.edu/bc_org/avp/cas/comm/free_speech/keyishian.html

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/pickering.html

http://www.law.cornell.edu/supct/html/90-7675.ZC3.html