Free speech cases :
“Congress shall make no laws abridging the freedom of speech or of the press”.
Because the First Amendment has such strong language, we begin with the presumption
that speech is protected. Over the years, the courts have decided that a few other public
interests — for example, national security, justice or personal safety — override freedom
of speech
1-Is freedom of speech absolute?
2- Under what conditions can govt. restrict free speech? High value v. low value speech
3- Does the First Amendment mean anyone can say anything at any time?
Libel and slander/ obscenity/ fighting words/incitement of immediate lawless action.
4- Does the first amendment protect you against private employers? Other individuals?
Is there a right not to be offended?
5- Content neutral (the court uses a balancing test weighing competing interests against
one another) and content-specific/ view point specific.
Free speech cases:
Two cases that tested the limits of the First Amendment and demonstrated American
commitment to free speech:
Brandenburg v. Ohio (1969)
Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally in which he
threatened the president, Congress and the Supreme Court for suppressing the white race,
and called for revenge against Jews and African Americans. He was later convicted
under an Ohio law which made it illegal to advocate "crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or political
reform".
National Socialist Party of America v. Village of Skokie (1977)
A group of National Socialist Party of America members decided to hold a demonstration
in a city with a large number of Jewish residents, many of whom survived the Holocaust.
The party members wanted to display the swastika, a symbol of Nazi beliefs that for
many people represents the Holocaust itself. The citizens of the city were not only deeply
offended by the Nazis’ beliefs but feared that violence would result if the National
Socialist Party members were allowed to parade through their streets in uniform and
distribute materials “inciting and promoting hatred against Jews … .” The city
government passed ordinances that gave the city council the authority to deny a
permit for a demonstration if that demonstration might result in disorder. The
National Socialist Party of America then sued, declaring the ordinances
unconstitutionally interfered with their rights to free speech.
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Is this speech protected?
What are the limits that can be imposed on demonstrations and protests?
Should the majority be able to silence people with unpopular views?
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The right to privacy: Roe v. Wade and the viability test.
The rights of the accused: based on the due process clause of the Fifth and the Fourteenth
that requires govt. to follow fair and regular procedures in actions that could lead to an
individual’s loss of life, liberty or property. Amendments 4,5,6, and 8.
The Fourth Amendment: “the right to be secure in their persons, houses, papers...against
unreasonable searches and seizures”.
Legal searches: court warrants based on probable cause. / Warrantless searches: when can
police search without a warrant?
What is the purpose of the exclusionary rule?
The 5th , 6th, and 8th Amendments.
Civil liberties in times of war:
Suspending the due process guarantees for national security purposes
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