Classification of Speech
most protected
Pure Speech, the spoken and written word alone
Symbolic Speech which is “speech plus” or speech with conduct (action) – generally thought of as “free expression”
march, picket, sit in, flag burning, expression through clothing, etc.
-officials may establish restrictions (via permits) to avoid disruptions but they may not use these
restrictions to censor speech
-public forum individuals have a right to use public places where people congregate to express
their views on public issues
some limitations apply —NOT allowed in front of army barracks or jails—for security
purposes--or even in a mall – private property rights take priority
Commercial Speech (and False Advertising)
Supreme Court employs a three step process/inquiry:
1. If the commercial speech concerns lawful activity and is not fraudulent, then a government regulation will
be valid only if the regulation -2. serves a substantial government interest; and
3. directly advances the asserted interest and is tailored to serve the substantial interest
Unprotected Speech -- obscenity, libel, slander, fighting words)
Clear and Present Danger (old)-- currently inciting “imminent lawless action”
speech is directed to produce or incite imminent lawlessness and speech is likely to cause such action or
violence.
Fighting Words—personally abusive epithets that, when addressed to the ordinary citizen, “are inherently likely to
incite
immediate physical retaliation”
Obscenity—not protected—definition is problematic
least protected
Defamatory Speech
slanderous and libelous speech (lies) known to be untrue, communicated to a third person, with the ”intent to
harm one’s standing in the community”
When dealing with public figures or matters of public concern the Times Test is used
(NY Times v. Sullivan 1964)
1. with knowledge that the statement was false, AND
2. with reckless disregard as to its truth or falsity, AND
3. there must be clear and convincing evidence that statements were made with malice