Science, the Brain, and the First Amendment

Interesting post by Marc Blitz over at Neuroscience and Law Blog on the subject of “low value speech” and the assumptions that scholars make about it, particularly with regard to its effect on mental images. Says Professor Blitz, “Can we use science to test and perhaps refine such assumptions?” He goes on:

While the First Amendment generally bars officials from censoring speech on the basis of its content, there are some exceptions to this rule: Government can punish words that incite others to break the law and can punish “true threats” that put us in fear of our physical safety. Many decades ago, the Supreme Court likewise held that we might be arrested for using “fighting words,” words so hateful or insulting that “by their very utterance [they] inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). While curse words are generally protected speech, the FCC has generally barred their use on daytime broadcast TV, when children can hear them. And some scholars have argued that the First Amendment should allow government to use similar measures to restrict minors’ access to television or video game violence. In many of these cases, courts have assumed that certain uses of threatening or violent words an imagery are likely to have a certain, worrisome impact on the audience’s mental processes and possible behavior. There also may be similar assumptions lurking behind some of the case law relegating commercial speech to the realm of “low value” speech (as is evident in some of the cases cited in my last post on subliminal advertising and communication). 

Here are some more of Professor Blitz’s posts: The Mind and Brain in Popular, and Not-So-Popular, MusicNeuromarketing, Subliminal Messages, and Freedom of Speech