Com360: The First Amendment
Freedom of Speech
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Free speech is a means to an end:
discovering the best idea possible.
(social reasons)
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Free speech is also an end itself: the
desire for free expression, self-fulfillment.
(individualistic reasons)
The Case for Free Speech
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Discovery of Truth: The pursuit of
political truth through competition of
ideas.
A means of political participation.
Check on Government: The restraint on
tyranny, corruption, and ineptitude.
Social Stability: The facilitation of
majority rule.
The marketplace theory
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The best test of truth is the power of the
thought to get itself accepted in the
competition of the market (Oliver Wendell
Holmes)
Freedom to think as you will and to speak
as you think are means indispensable to
the discovery and spread of political
truth (Justice Louis Brandeis)
Free expression and human dignity
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The First Amendment serves not only the
needs of the polity but also those of the
human spirit—a spirit that demands selfexpression (Thurgood Marshall)
Self-fulfillment
Pleasure, Gratification
Respect
First Amendment
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Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof, or abridging the
freedom of speech, or of the press; or the
right of the peaceably to assemble, and to
petition the Government for a redress of
grievances.
The First Amendment
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Ratified in 1791 as additional safeguards against
central government
Originally applied only to federal government
Expanded to the states in Gitlow v. New York
(1925). Decision based on the Equal Protection
Clause of the 14th Amendment (Incorporation
Doctrine): No state shall… deny to any person
within its jurisdiction the equal protection of the
laws.
What is Speech
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All forms of expressions:
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The actual spoken/written
communication
Symbolic speech / Expressive conduct to
convey a message
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Symbolic speech:
Cohen v. California (1971)
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Facts:A 19-year-old man expressed his opposition
to the Vietnam War by wearing a jacket
emblazoned with "FUCK THE DRAFT. STOP
THE WAR"
He was convicted under a California statute that
prohibits "maliciously and willfully disturbing the
peace and quiet of any neighborhood or person
[by] offensive conduct."
Cohen v. California (1971)
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Question Presented: Did California's statute
violate freedom of expression rights?
Conclusion: Yes. The expletive, while
provocative, was not directed toward anyone; The
Court recognized that "one man's vulgarity is
another's lyric." In doing so, the Court protected
two elements of speech: the emotive (the
expression of emotion) and the cognitive (the
expression of ideas).
What about burning draft cards?
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United States v. O’Brien 1968
Not protected by the First
Amendment:
A sufficiently important governmental interest
in regulating the nonspeech element (the
card assists in administrative procedures).
Symbolic
speech
R.A.V. v. City of St. Paul 1992
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Displays containing abusive
invective, no matter how vicious or
severe, are permissible as long as
they don’t provoke violence etc.
Flag burning
Texas v. Johnson (1989)
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During the protests against the Republican
National Convention in Dallas in 1984
Gregory Johnson set on fire a national flag.
He was convicted under Texas criminal
statute making: it is a criminal offense to…
desecrate… a state or national flag.”
He was sentenced to one year in prison and
a fine of $2,000.
Texas v. Johnson (1989)
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The Supreme Court was divided 5-4 in the
decision but ruled for Johnson.
It ruled that the desecration was “expressive
conduct.” Thus, Texas statute prohibited
expressing ideas, not desecration and thus
was not permissible.
United States v. Eichman 1990.
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The Federal Flag Protection Act adopted
in response to Texas v. Johnson is
unconstitutional under the first
Amendment.
Chaplinsky v. New Hampshire (1942)
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Facts: Chaplinsky called a city marshal a "Goddamned racketeer" and "a damned fascist" in a
public place. He was convicted under a state law
for violating a breach of the peace.
Question: Does the statute violate his freedom of
speech rights?
Conclusion: No. Some forms of expression-among them obscenity and fighting words--do
not convey ideas and thus are not subject to First
Amendment protection.
Prior Restraint
Near v. Minnesota (1931)
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Prior Restraint (censorship): Prohibition
of speech before the fact
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The Case of Near v. Minnesota: Any
system of prior restraints of expression
comes to this Court bearing a heavy
presumption against its constitutional
validity
Prior Restraint:
other methods of censorship
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Licensing (excessive requirements/unequal)
Informal Coercion (warnings)
Financial burdens (e.g., tax on certain
publications, extra fees, limiting payments, etc.)
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Punishment After the Fact
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More likely than Prior Restraint, but still
very unusual.
Will be covered in greater detail in later
chapters
Compelled Speech
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Media Access
Compelled Financial Support (e.g., union
dues)
Attribution Requirements
Time, Place, Manner Restrictions
Standards of judicial review
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Minimum Scrutiny
Rational Standard / Legitimate Interest: requires the law to
be reasonably related to a legitimate state interest.
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Intermediate Scrutiny
Important governmental interest: requires the law to be
substantially related to an important government interest
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Strict Scrutiny
Compelling governmental interest: the law must be
narrowly tailored to address a compelling state interest.
Strict Scrutiny
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The highest standard of judicial review.
To pass strict scrutiny, the law or policy:
1. must be justified by a compelling
governmental interest
2. must be narrowly tailored to achieve
that goal or interest
3. must be the least restrictive means for
achieving that interest