Freedom of Speech
Types of Speech
Freedom of speech is not limited to spoken words alone, but includes several types of speech. Pure
speech involves only spoken words, such as debates and public meetings, and has the greatest
protection under the First Amendment. Speech-plus is speech combined with action, such as
demonstrations and picketing. The speech portion of speech-plus is generally protected, but the
action portion may be regulated. Symbolic speech is conduct that conveys a message in itself,
without spoken words, and is sometimes known as “expressive conduct.”
Explain the differences among the three types of speech.
Pure speech
Speech-plus
Symbolic speech
Label which type of speech do you see in each image?
Should each of these be protected by the first amendment?
EXPLAIN THE RESULT IN YOUR OWN WORDS IN THE SPACE TO THE RIGHT
A) Symbolic Speech.
The Supreme Court held that peaceful picketing was
protected by the First Amendment in Thornhill v.
Alabama (1940). The Supreme Court has held: “We
cannot accept their view that an apparently limitless
variety of conduct can be labeled ‘speech’ whenever the
person engaging in the conduct intends thereby to express
an idea.” Thus, some forms of symbolic speech are
protected by the First Amendment, while others are not.
B) Obscenity.
Obscene speech is not protected by the First Amendment.
Obscenity is generally defined as anything that depicts sex
or nudity in a way that violates society’s standards of
decency. The Supreme Court set forth a complex
three-part test (Miller Test) for obscenity in Miller
v. California (1973). Speech or conduct is obscene if it
has all of the following characteristics:
1. “The average person, applying contemporary
community standards,” would find that the work,
taken as a whole, “appeals to the prurient (perverted)
interest” –that is, an obsessive interest in sex.
2. “The work depicts or describes, in a patently
offensive way,” a type of sexual conduct prohibited
by law.
3. “The work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.”
As Chief Justice Warren Burger said: “It is neither realistic
not constitutionally sound to read the First Amendment
as requiring that the people of Maine or Mississippi
accept public depiction of conduct found tolerable in Las
Vegas or New York.”
Thornhill V. Alabama, 1940
Miller V. California, 1973
Obscenity
Would these violate the Miller test?
How would your grandmother respond?
Sports Illustrated Cover
Roger Maplethorpe
C) Clear and Present Danger.
Several important First Amendment cases were decided
under the espionage Act of 1917, which made it a crime to
obstruct the draft during World War I. In Schenck v. United
States (1919), the Supreme Court upheld the conviction of
Schenck, an official of the Socialist party, for mailing
thousands of pamphlets to young men to persuade them to
resist the draft. The Court ruled that the Espionage Act did
not violate freedom of speech. As Justice Oliver Wendell
Holmes wrote for the unanimous Court:
Words can be weapons . . . The question in every
case is whether the words are used in such
circumstances and are of such a nature as to create
a clear and present danger that they will bring
about the substantive evils that Congress has a
right to prevent.
The “clear and present danger” test established that
government can punish speech when it creates an immediate
threat of criminal action. While the Court admitted that in
peacetime Schenck’s speech would have been protected, in
wartime it was not. “The character of every act
depends upon the circumstances in which it is
done,” said the Court.
Schenck V. U.S., 1919
Should our speech rights change during
war? Why…
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D) Fighting Words.
In Chaplinsky v. New Hampshire (1942), Chaplinksy was
arrested for calling a city official a “damned Fascist” and a
“goddamned racketeer”. Chaplinsky was standing to face-toface with the other person.
The Supreme Court held that such words, spoken face-toface, “have a direct tendency to cause acts of violence” and
are not protected speech. Fighting words are more like a
verbal assault than an exchange of information and opinion.
The First Amendment does not protect abusive or insulting
language, known as “fighting words”.
Chaplinsky v. New Hampshire, 1942
Does Chaplinsky apply to these people
to the left?
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