Congress shall make no law
abridging the free speech
thereof…
Historical background: Speech
• In 16th c.(1500s)
England
• a subject Henry
VIII you would be
sent to prison for
saying, “I like not
the proceedings of
this realm.”
• Earlier times, the
sentence would be
harsher - death
for treason.
Sedition Act of 1798
• “The
urging of
resistance to
lawful authority or
rebellion against
the government.”
• A crime to write,
print, or say “any
false, scandalous,
and malicious”
statements against
the gov’t and its
officials.
Espionage Act of 1917
• WWI - Nat'l gov’t
limiting speech during
war time
• Suppress criticism of
war, Congress passed
the E.A.
• “A crime to interfere
with the recruiting of
soldiers or the draft.
Willfully utter, print,
write, or publish any
disloyal, profane,
scurrilous, or abusive
language about the form
of gov’t in US”
• 2,000 people convicted
Regulating Speech
• Clear and Present Danger
Test
• Schenck v. United States
1919
• Chief Just Oliver Holmes
stated, , “speech is limited
when a clear and present
danger exists.”
• Schenck printed leaflets
urging people to obstruct
the war effort in WWI
• During wartime free speech
can be limited
Protected (legal) Speech
• 1) PURE SPEECH
• A) verbal expression ofof
thought and opinion before an
audience that has chosen to
listen.
• B) Most common form of
speech.
• C) One’s home or in front of
an audience.
2) Speech Plus
Speech
involving actions
such as
marching or
demonstrating
Speech Plus
3) Symbolic Speech
• A.k.a. - Expressive
conduct
– involves using
actions and
symbols to express
opinions.
– Percey’s War Art
demonstration from
their house.
– Tinker vs. Des
Moines 1969
Symbolic Speech
– Symbolic speech
involves actions,
the Court can
put restrictions
that do not apply
to pure speech.
• Gov’t has ruled
that blocking
sidewalks or
traffic,
trespassing or
endangers
public safety.
When is Symbolic Speech
Protected?
• You will examine six scenarios (all true)
about the legality of Symbolic Speech.
• You can work in small groups (no more than
3)
• Read each scenario AND refer back to the
front page of the information to determine
if that action is correct or not.
• YOU MUST JUSTIFY YOUR ANSWERS!
Is the ACTION a form of Constitutionally
protected “symbolic speech”?
• 1) YES! / 1940
• Law prohibiting
picketing (striking)
was INVALID b/c
it did not
inherently pose a
“clear & present
danger.”
• 2) NO! / 1968
• Law justified b/c it
furthered an
important gov’t
interest.
• So NO to burning
draft cards!
Is the ACTION a form of Constitutionally
protected “symbolic speech”?
• 3) YES! / 1974
• Overturned
conviction…why?
• 1) flag privately owned
• 2) private property
• 3) no risk “breach of
peace” (incitement to
riot / disorderly
conduct.
• 4) future
interpretation if the
factors do not apply.
• 4) NO! 2008
• Upheld ban
• School officials could
reasonably predict the images
would “substantially and
materially disrupt the school
environment”
Is the ACTION a form of Constitutionally
protected “symbolic speech”?
• 5) NO 1984
• Gov’t can restrict
time, place, manner
of demonstrations
• Upkeep of the parks
• Other ways for the
group to express their
message.
• 6) YES! 1977
• States could NOT
require people to use
these license plates.
• “individuals to hold a
p.o.v. different from
the majority and to
refuse to foster…an
idea they find
morally
objectionable.”
Censorship of
Speech
Flag Burning - Constitutional
Expression or Symbolic Speech?
• 1976 - Sutherland v. Illinois - Supreme
Court ruled that burning the American
flag was not symbolic speech.
• 1989 - Texas v. Johnson
Texas v. Johnson ’89
-Right to burn the American flag•
•
•
While the Republican National
Convention was taking place in Dallas
in 1984, Gregory Johnson participated
in a political demonstration.
Demonstrators marched through Dallas
streets, stopping at several locations to
stage “die-ins” intended to dramatize
their opposition to nuclear weapons.
One demonstrator took an American
flag from a flagpole and gave it to
Johnson.
The demonstration ended in
front of the Dallas City Hall, where
Johnson unfurled the American flag,
doused it with kerosene, and set it on
fire. While the flag burned, protesters
chanted, “America, the red, white, and
blue, we spit on you.” There were no
injuries or threats of injury during the
demonstration.
•
•
Of the 100 demonstrators, only Johnson
was arrested. He was charged under a
Texas criminal statute that prohibited
desecration [meaning “deface, damage,
or otherwise physically mistreat in any
way”] of a venerated object (including
monuments, places of worship or burial,
or a state or national flag) “in a way that
the actor knows will seriously offend one
or more persons likely to observe or
discover his action.” (Texas Penal Code
42.09)
At Johnson’s trial, several
witnesses testified that they had been
seriously offended by the flag burning.
He was convicted, sentenced to one year
in jail, and fined $2,000. The case was
appealed to the U.S. Supreme Court.
Texas v. Johnson ‘89
• 5 - 4 decision,
• ruled that Johnson’s burning of
a flag was protected
expression under the First
Amendment.
• The Court said Johnson’s actions
were really political expression.
It does not matter if an
audience takes offense to the
ideas expressed by Johnson.
The Court said that “[If there is
a bedrock principle underlying
the First Amendment, it is that
the Government may not prohibit
the expression of an idea simply
because society finds the idea
itself offensive or
disagreeable.”
Flag Desecration in America
• STATE LAWS:
•
California: a misdemeanor for anyone to cast
contempt on any flag by mutilating, defacing, defiling,
burning or trampling it.
• [Cal. Mil. & Vet. Code Ann. 614]
•
Texas: Class A misdemeanor who intentionally
damage, deface, mutilate or burn the United States flag
or Texas state flag.
• [Texas Code Ann. Sec. 42.11]
• Supreme Court twice has invalidated state flag laws, 47
states still have on book laws, modeled after the
Uniform Flag Law of 1917 that prohibits the desecration
of the flag or its use for advertising and publicity
purposes.
Three Forms of Speech NOT
Protected
• Defamatory Speech
Doesn’t protect false speech that damages a
person’s good name, character, or reputation.
– Slander: spoken statements that damage
a person’s reputation.
– Slander is expressed verbally, it’s not a criminal
offense like libel. This really makes slander hard
to prove, because not only do you have to show
that the statement was made, but you also have
to show that damage was done.
Defamatory Speech
• Libel: written statements that
damage a person’s reputation.
– The tricky thing about libel is that it
includes symbols, drawings, or the written
word.
– So, those pictures you drew of your teacher
with the head of a pig were technically
libelous.
What is Defamation of
Character?
Defamation includes four main points:
– 1) The comment must be a false statement.
– 2) The comment is understood to be intended
against another person, business, or product.
– 3) The comment is verbalized or written to at
least one other person.
– 4) The comment is understood as damaging to a
person, business, or product.
Fighting Words
Court ruled that words that are so insulting
that they provoke immediate violence do not
constitute free speech
• Lewd (crude/offensive usually in a sexual way)
• Obscene (statement that offends others)
• Profane (Marked by contempt or irreverence for
what is sacred)
• libelous
• Insulting (To treat with gross insensitivity, insolence,
or contemptuous rudeness.)
• “fighting” words – those which cause
Injury or tend to incite breach of peace
Freedom of Speech at School?
Bethel School District v. Fraser 1986
• Ruling: Though the US Ninth Circuit Court of
Appeals ruled in favor of Fraser, the Supreme
Court reversed this decision with a 7-2 ruling in
favor of the Bethel School District.
• “The First Amendment dose not prevent the
school officials from determining that to permit
vulgar and lewd speech such as (Fraser’s) would
undermine the school’s basic educational mission.”
• Precedent: Bethel v. Fraser determined that it
is legal for schools to censor obscene, lewd,
vulgar and plainly offensive speech.
Hazelwood S.C. v.s.
Kuhlmeier ‘88
• This case involves a
student-run high school
newspaper.
• The issue is whether a
principal has the authority
to censor (edit) the
content of the articles IF
they feel it is
inappropriate for their
students.
• Let’s find out!
Hazelwood Decision
• In a 5 – 3 decision (one judge abstained
from voting)
• Ruled “ A school need not tolerate
student speech that is inconsistent
with its “basic educational mission.”
• “Even though gov’t could NOT censor
similar speech outside of school.”