CH. 19-3 FREEDOM OF
SPEECH AND PRESS
ADVANCED AMERICAN GOVERNMENT
FREE EXPRESSION
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“Sticks and stones may break my bones, but names
will never hurt me”
Guarantee of free speech in 1st and 14th Amend.
Serve to fundamentally important purposes:
1) to guarantee each person a right of free
expression, in spoken and written form, and by all
other means
2) to guarantee to all person a full, wide-ranging
discussion of public affairs
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1) Guarantees of free speech and press is intended to
protect the expression of unpopular views
2) Some forms are not protected
No person has unbridled right of free speech
No person has the right to LIBEL or SLANDER someone.
LIBEL—false and malicious use or printed words
SLANDER—false and malicious use of spoken words
Obscene words, material, and false ads are prohibited
SEDITIOUS SPEECH
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SEDITION—crime of attempting to overthrow the
government by force of to disrupt its lawful activities by
violent acts
SEDITIOUS SPEECH—the advocating, or urging, of such
conduct.
THE ALIEN AND SEDITION ACTS
1798
Law was meant to stifle the opponents of President John
Adams and the Federalists
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These laws were probably unconstitutional but never
tested in court
THE SEDITION ACT OF 1917
Crime to encourage disloyalty, interfere with the draft,
obstruct recruiting, incite insubordination in the armed
forces, or hinder the sale of government bonds
2,000+ arrested
Schenck v. United States (1919)—conviction upheld
Read opinion p. 547 (2nd column, bottom)
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THE SMITH ACT OF 1940
Still exists; makes it a crime for anyone to advocate
the violent overthrow of the government of the USA,
to distribute any material that teaches or advises
violent overthrow, or to knowingly belong to any
group with such an aim.
USSC would decide to limit the Smith Act in future
years and today is have become almost unenforcable
OBSCENITY
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What language and images in printed matter, films,
and other materials are obscene?
First obscenity laws in 1872
Current Law was upheld by USSC in Roth v. United
States (1957) – first attempt to define obscenity
Excludes “every obscene, lewd, lascivious, or filthy”
piece of material from the mail.
Miller v. California (1973)
Three part test to determine obscenity
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1) “the average person applying contemporary
[local] community standards” finds that the work,
taken as a whole, “appeals to the prurient
interest”—that is, tends to excite lust
2) “the work depicts or describes, in a patently
offensive way,” a form of sexual conduct
specifically dealt with in an anti-obscenity law
3) “the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value
PRIOR RESTRAINT
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Constitution allows government to punish for
something said after it occurs but it cannot place
any PRIOR RESTRAINT on spoken or written words.
Examples where Prior Restraint has been allowed:
1) Greer v. Spock (1976)—regulations prohibiting
the distribution of political literature on military
bases without the approval of military authorities
2) Snepp v. United States (1980)—a CIA rule that
agents must never publish anything about the
agency without the CIA’s permission
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3) Thornburgh v. Abbott (1989)—A federal prison
rule that allows officials to prevent an inmate from
receiving publications considered “detrimental to
the security, good order, or discipline” of the prison
4) Hazelwood School District v. Kuhlmeier (1988)—
public school officials have a broad power to
censor school newspapers and plays, as well as
other “school-sponsored expressive activities.”
THE MEDIA
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To what extent can the media—both print and
electronic—be regulated by the government?
CONFIDENTIALITY
Can a journalist be required to give the name of a
source while testifying in court or before a
legislative committee?
State and federal courts have generally have not
given journalists confidentiality rights and some
people have gone to jail for refusing to reveal a
source
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MOTION PICTURES
Mutual Film Corporation v. Ohio (1915)—upheld an
Ohio law that barred showing any film that was not
of a “moral, educational, of harmless and amusing
character.”
1952—USSC reversed itself saying expression
using motion pictures was protected by 1st and 14th
Amend.
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RADIO AND TELEVISION
Radio and TV are subject to extensive government
regulation
Airwaves are public property so the radio and TV
stations need a license
Congress has forbidden FCC to regulate content of
programs before they are broadcast
Cable TV has been given broader 1st Amend.
Freedom than traditional TV
SYMBOLIC SPEECH
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SYMBOLIC SPEECH—communicating ideas by
conduct such as facial expression, carrying a sign,
or wearing an armband
PICKETING—patrolling a business site by workers
who are on strike
Protected by 1st Amend. If peaceful
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OTHER SYMBOLIC SPEECH CASES
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United States v. O’Brien (1968)—involved four
young men who burned their draft card to protest
the Vietnam War
O’Brien was convicted because of a federal law
banning draft card burning
O’Brien appealed saying this was symbolic speech
USSC said there is not a limitless list of actions that
involve symbolic speech just because a person
engages in a particular act.
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Tinker v. Des Moines School District (1969)
A small group of students had worn black
armbands to publicize their opposition to the
Vietnam War. The school suspended them.
“It can hardly be argued that either students or
teachers shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate”
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FLAG BURNING
Burning the flag as an act of political expression is
protected
Constitutional amendments have been discussed to
prevent this act but have not gained momentum.
COMMERCIAL SPEECH
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Most information from businesses is protected but
there are exceptions
The government can and does protect against false
and misleading advertisements
THE END