Gretchen Fritchie
Mentorship
Thompson
7 November 2006
Free Speech
First Amendment
Freedom of Speech:
 Without free speech, citizens cannot debate the actions and policies of their elected
officials, nor can they be well informed about current issues
 Some people argue that the First Amendment only protects political speech
 The right to free speech has been limited by the courts
o Censorship takes place in many forms : banned books, laws against certain
types of speech, and imprisonment or death for dissenters
 First mentioned in the Massachusetts Body of Liberties in 1641, and after the Civil War,
many states included free speech in their constitutions
 Only three states recommended that this right be included in the U.S. Constitution
o Sedition Act made it a crime to write, print, or say anything bad about the
government and its officials in order to influence others to feel the same way
 Designed by John Adams and his Federalist allies to keep their
Democratic-Republican opponents from speaking out
 Never brought to the Supreme Court because Democratic-Republicans
were afraid how the Federalist-dominated Court would respond
o The Labor Movement , the struggle to organize the industrial workforce into
unions was often violent, and labor unions faced intense opposition.
 Labor unions challenged the boundary between speech and action and
claimed that speaking out against the businesses was protected speech
 Workers of the World were active in challenging local ordinances
suppressing speech
o The Espionage Act of 1917 made it a crime to interfere with the recruiting of
soldiers or the draft and to say anything bad about the form of government in
the United States
 More that 2,000 people were convicted under this act
 This is where the Court began developing a doctrine of free speech that
would eventually protect the speech that was forbidden by this act
Supreme Court Cases
Gitlow v. New York (1925)
Facts of case: Gitlow was a socialist, and was arrested for distributing copies of a “left-wing
manifesto” that preached the establishment of socialism through boycotts and riots. He was
convicted under a state law that prohibited the attempt of overthrowing government by force.
Question: does the New York law that punishes the advocacy of overthrowing government
violate the free speech clause of the First Amendment?
Conclusion: Yes- The states can only prohibit this speech if it has an effect that could be
dangerous to public security. Passing out these copies would not have created a danger to
public security.
Thornhill v. Alabama (1940)
Facts of case: A man named Thornhill joined a picket line that protested against a former
employer. Alabama law said it was a crime to picket. He was fined $100 and was the only union
leader that was arrested and persecuted under law.
Question: Does the Alabama law violate Thornhill’s right to free speech under the First
Amendment?
Conclusion: Yes- the Court found that no clear and present danger of destruction of life or
property or of breach of the peace was to come from picketing, and therefore Thornhill had
the right to picket
Burning Draft Cards
1. United States v. O’Brien (1968)
a. Facts of case: David O’Brien burned his draft card at a Boston courthouse in
opposition to the Vietnam War. He was prosecuted under a federal law that
said this was a crime
b. Question: Is O’Brien protected under the free speech clause of the First
Amendment to burn his draft card?
c. No- Draft cards were necessary to the legitimate government purpose of raising
an army, and the federal law prohibiting the destruction of draft cards was not
designed to suppress dissent
Flag Burning
1. Texas v. Johnson (1989)
a. Facts of case: Gregory Johnson burned an American flag in front of Dallas City
Hall in protest against Reagan administration policies. Texas law said that this
was a crime.
b. Question: is the burning of the American flag protected in the free speech
clause of the First Amendment?
c. Yes- had a distinctive political nature. The fact that society takes offense to
this has nothing to do with whether or not it’s constitutional.
2. United States v. Eichman (1990)
a. The Flag Protection Act of 1989 punished flag desecration whether or not it
offended onlookers. Protestors of this act burned flags on the steps of the U.S.
Capitol in response.
b. Does the Protection Act violate the free speech clause?
c. Yes- act is unconstitutional because it punished anyone who
burns/defaces/physically defiles the flag, and therefore prohibited people from
showing their disrespect for the flag. The law punished the content of the
message, and not the action itself.
Public Forums
-Government cannot deny free speech rights in a public forum, but it may issue “time, place,
and manner” regulations about when, where, and how freedom of speech may be exercised. In
doing this, the government must be content-neutral.
1. Madsen v. Women’s Health Center (1994)
a. Facts of case: antiabortion protestors were protesting in Women’s Health
Centers, and they blocked the accesses to the clinics
b. Question: Are the protestors allowed to block the clinic access because of their
free speech rights?
c. No- the clinic has the right to make restrictions on these protestors. The Court
upheld both limits on amplified noise and a buffer zone in which protests were
not allowed near the clinic’s entrance
2. Schenck v. Pro-Choice Network of Western New York (1997)
a. Facts of case: Act filed by the Network against Schenck to keep him from
conducting illegal activities in front of abortion clinics. A District Court created
floating buffer zones that prohibited protestors from being less than 15 feet
away from people and cars trying to gain access to the clinics.
b. Question: do these “floating buffer zones” violate Schenck’s right to freedom
of speech as protected by the First Amendment?
c. Yes- having this 15-ft restriction would create an inordinate amount of
confusion and congestion
The Right Not to Speak
-Government cannot force a person to be silent, but neither can it force a person to speak
1. West Virginia State Board of Education v. Barnette (1943)
a. Facts of case: The W.V. Board of Ed. required that the flag salute be part of
the program of activities in all public schools. All teachers and students were
required to honor the flag and those who didn’t were punished.
b. Question: Does the required flag salute for public school children violate the
free speech clause of the First Amendment?
c. Yes- A means of communicating ideas to students.
2. Wooley v. Maynard (1977)
a. Facts of case: New Hampshire law required all noncommercial vehicles to have
license plates that said, “Live Free or Die.” Maynard was a Jehovah’s Witness
and found the words to be contrary to his political beliefs. He cut “die” from
the slogan, and was given a jail sentence.
b. Question: Did the New Hampshire law unconstitutionally interfere with the
freedom of speech guaranteed by the First Amendment?
c. Yes- required citizens to use their property as “mobile billboards” for the
state’s ideological message. The state’s interests did not outweigh those
protected by the First Amendment. People are allowed to hold a different
point of view from the majority.
3. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
a. Facts of case: Allied War Veterans of Boston were organizing a St. Patrick’s Day
parade, and they refused to allow the Irish American GLIB to take part in the
parade. GLIB wanted to join the parade to express their pride for their Irish
heritage as well as for their gay views. Massachusetts law required for The
Allied War Veterans to include GLIB in their parade.
b. Question: Was this requirement by the Massachusetts legislature in
correspondence to the free speech clause of the First Amendment?
c. Yes- sponsors of privately organized parades can choose to exclude certain
groups with whose message they disagree. A parade is an activity protected by
the First Amendment, and the government cannot compel parade organizers to
express other people’s viewpoints.
Government as Speaker
1. Rust v. Sullivan (1991)
1. Facts of case: The national government provides funds for family planning
services. The Department of Health and Human Services issued regulations
limiting the ability of fund recipients to engage in abortion-related activities.
The funds were to be used only to support preventive family planning services.
2. Question: Do the regulations violate the First Amendment?
3. No- the government is able to take sides and have view points when it is
funding. The Court said that “when the government appropriates public funds
to establish a program it is entitled to define the limits of that program.”
2. Legal Services Corp. v. Velazquez (2001)
1. Facts of case: The Legal Services Corporation Act authorizes the LSC to
distribute funds to local grantee organizations. These organizations provide
free legal assistance to indigent clients in welfare benefit claims. The Omnibus
Consolidated Rescissions and Appropriations Act of 1996 prohibited the LSC
from funding any organization that represented clients in an effort to change
the existing welfare law.
2. Question: does the funding restriction on the LSC, which prevents attorneys
from representing clients in an attempt to amend the welfare law, violate the
First Amendment?
3. Yes- the Court believed that this regulated private speech and insulted federal
law from legitimate judicial challenge. “The LSC program was designed to
facilitate private speech, not to promote a governmental message.”
Speech in Campaigns
1. Buckley v. Valeo (1976)
a. Facts of case: during the Watergate affair, Congress attempted to ban
corruption in political campaigns by restricting financial contributions to
candidates. The law set restrictions on the amount of money an individual
could donate to a single campaign. The Federal Election Commission was
created to enforce these rules.
b. Question: Do these limits violate the free speech clause of the first
amendment?
c. The Court upheld laws that restricted direct contributions to a candidate since
large contributions could imply corruption. But, the Court did not uphold laws
that limited how much a person could spend independently on behalf of a
candidate, since that limited freedom of expression. Extended to state
elections in Nixon v. Shrink Missouri PAC (2000).
2. FEC v. Beaumont (2003)
a. Facts of case: The Federal Election Campaign Act was passed in 1971 by
Congress, which banned direct corporation donations to federal election
campaigns. An antiabortion advocacy group challenged this act, saying it
violated their right to free speech. This group is a non-profit lobbyist group
that backs candidates that agree with their cause.
b. Question: Does the Federal Election Campaign Act's ban on corporate political
donations violate the freedom of speech for incorporated, non-profit advocacy
groups?
c. No- The limitations are constitutional even when the corporation is nonprofit,
because the laws of incorporation could give such organizations political
advantages.
3. Arkansas Educational Television Commission v. Forbes (1998)
a. Facts of case: This state own television commission sponsored a debate
between the major party candidates in Arkansas’s Third Congressional District
elections. Ralph Forbes was an independent candidate, and wanted to
participate in the debate. He was denied permission.
b. Question: Is the exclusion of a ballot-qualified candidate from a debate
sponsored by a state-owned public television broadcaster a violation of the
candidate's First Amendment right to freedom of speech?
c. No- such debates are not public forums, so a public television may exclude
candidates who have not generated significant voter support.
Obscenity
1. Miller v. California (1973)
a. Facts of case: Miller conducted a mass mailing campaign to advertise the sale
of “adult” material. By California law, Miller violated a statute that prohibited
the distribution of obscene material.
b. Question: Is the sale of this “adult” material protected under the free speech
clause of the First Amendment?
c. No- obscene materials do not hold First Amendment protection. All of these
points count for material being obscene, and therefore unconstitutional:
i. “The average person, applying contemporary community standards,”
would find that the work, taken as a whole is an obsessive interest in
sex.
ii. “The work depicts or describes, in a patently offensive way,” a type of
sexual conduct prohibited by law.
iii. “The work, taken as a whole, lacks serious literary, artistic, political,
or scientific value.”
The Miller test gave local communities a great deal of authority in
outlawing obscenity.
2. Stanley v. Georgia (1969)
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a. Facts of case: Law enforcement officers searched the home of Stanley under a
warrant, hoping to get information about his accused bookmaking activities.
The officers found film that had obscene material and seized them. Georgia
law prohibits the possession of obscene materials.
b. Question: Does this Georgia law violate the First Amendment?
c. Yes- the right to privately own this material is essential in a free society.
Cohen v. California (1971)
a. Facts of case: a 19-year old department store worker expressed his war
opposition by wearing a shirt that said, “F**K THE DRAFT. STOP THE WAR.” He
was charged for a California law that prohibits "maliciously and willfully
disturb[ing] the peace and quiet of any neighborhood or person [by] offensive
conduct."
b. Question: Does the California law prohibit Cohen’s freedom of speech?
c. Yes—His opinion was not directed toward anyone. The Court held that some
arguably obscene speech could be used in political statements to express
intense emotions.
National Endowment for the Arts v. Finley (1998)
a. Facts of case: The National Endowment for the Arts is a grant that is given for
the arts. There are guidelines for these endowments, and at first the guidelines
were “artistic and cultural significance with emphasis on creativity and cultural
diversity.” Congress amended these guidelines in 1990 and required the
endowment to consider “artistic excellence and artistic merit taking into
consideration general standards of decency and respect for the diverse beliefs
and values of the American public." When a woman was denied the fund, she
challenged the constitutionality of these guidelines in court.
b. Question: “Are the statutory funding guidelines requiring the NEA to consider
artistic excellence, merit, and general standards of "decency and respect,"
overly vague and conducive of viewpoint discrimination in violation of the First
Amendment's freedom of expression guarantees?”
c. No- Congress can require federally funded arts agencies to consider “general
standards of decency” when deciding where to provide grants. The law cannot
prohibit indecent art though.
Reno v. American Civil Liberties Union (1997)
a. Facts of case: the 1996 Communications Decency Act intended to protect
minors unsuitable from internet material. The Act criminalized the intentional
transmission of “obscene or indecent” messages and also criminalized the
transmission of information which depicts sexually obscene and “offensive”
material.
b. Question: Do these provisions under the Communications Decency Act violate
the free speech clause by being too vague in their definitions of the type of
internet communications which can be criminalized?
c. Yes- too vague. Its regulations “amounted to a content-based blanket
restriction of free speech.” The Act failed to clearly define “indecent
communications.”
United States v. Playboy Entertainment Group (2000)
a. Facts of case: The Communications Decency Act requires that cable operators
that provide channels with explicitly sexual content either block their channels
or require that they only play during the hours when young children most likely
will not be watching. The Playboy Entertainment Group challenged the
constitutionality of this section of the Decency Act.
b. Question: Is this section of the Act the least restrictive way to block these
cable stations, such that it doesn’t violate the First Amendment?
c. No- These restrictions are too harsh and there are less restrictive measures,
such as channel blocking by households, available.
Erie v. Paps’s A.M. (2000)
a. Facts of case: Pap’s A.M. was a place in Erie, PA which featured nude female
erotic dancing. The state outruled this dancing, and said that it was against the
law to knowingly appear in public naked. The dancers were required to wear
some sort of covering.
b. Question: Are these dancers protected under the free speech clause of the First
Amendment to dance completely nude?
c. No- The requirement of the g-string is a very minimal requirement in the
government’s interest, and even with these g-strings, the dancers can still
convey what they are trying to in their erotic dance.
Fighting Words
1. Chaplinsky v. New Hampshire (1942)
a. Facts of case: Chaplinksy was a Jehovah’s Witness, and called a city marshal a
“God-damned racketeer” and “fascist” in a public place. He was arrested with
disrupting the peace of the environment.
b. Question: Does his arrest violate the free speech clause of the First
Amendment?
c. No- his screaming does not convey any ideas, so it is not subject to First
Amendment protection. His words are some of those that “have a direct
tendency to cause acts of violence.”
2. R.A.V. v. St. Paul (1992)
a. Facts of case: Several teenagers burned a crudely fashioned cross on a black
family’s lawn. The police charged these teens under a local ordinance that
prohibits the burning a symbol that "arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender."
b. Question: Is the ordinance overly broad and content-based in violation of the
First Amendment?
c. Yes- It prohibits the speech solely on the individual the speech addresses. The
Court held that St. Paul punished speech that could not be regulated purely on
the basis of its content.
3. Wisconsin v. Mitchell (1993)
a. Facts of case: a black man named Todd Mitchell was accused of leading an
attack against a white juvenile after watching the movie Mississippi Burning (a
white man beat a black youth who was praying).
b. Question: is this assault protected under the free speech clause of the First
Amendment?
c. No- The Wisconsin law that increases the penalty for crimes committed
because of race, religion, sexual orientation, and other listed factors is
constitutional because assaults are no where protected. Although the factors
for the assault are protected under the First Amendment, the actual assault is
not.
4. Virginia v. Black (2003)
a. Facts of case: A Virginia law prohibits the burning of any cross on someone’s
property for any reason, especially that of intimidating another person. Barry
Black was convicted under this statute.
b. Question: Does the Virginia statute violate the free speech clause of the First
Amendment.
c. No- if the burning is done intentionally to intimidate someone, it is not
protected in the Constitution. If the burning is done no intended to intimidate
someone, then it is okay.
5. 44 Liquormart v. Rhode Island (1996)
a. Facts of case: Rhode Island law prohibits the advertisement of liquor sales at
places where liquor is not sold. Petitioners felt that this law violated their
freedom of speech.
b. Question: is this Rhode Island law an infringement of citizens’ freedom of
speech?
c. Yes- “Justice Stevens held that governmental impediments to truthful and
accurate commercial messages rarely protect consumers.”
6. Greater New Orleans Broadcasting Association v. United States (1999)
a. Facts of case: The Greater New Orleans Broadcasting Association wanted to run
advertisements for lawful private casino gambling in Louisiana and Mississippi.
Federal law prohibits this.
b. Question: does the federal prohibition of advertisement for privately owned
casino gambling violate the First Amendment’s freedom of speech protections?
c. Yes- unanimously declared that this federal prohibition was unconstitutional in
states where such gambling is legal.
Speech in Schools
1. Tinker v. Des Moines School District (1969)
a. Facts of case: Mary Beth and John Tinker were suspended from school for
refusing to remove the armbands that they were wearing to protest the
Vietnam War.
b. Question: Does a prohibition against wearing armbands in public schools, as a
form of symbolic protest, violate the First Amendment’s free speech
protections?
c. Yes- while teachers may imply restrictions to speech in their schools, the
teachers in this case had no reason for imposing the limits. The principle of the
school failed to show that the armbands disrupted school in any way.
2. Bethel School District v. Fraser (1986)
a. Facts of case: A high school student named Matthew Fraser was suspended for
making a sexually suggestive speech at a student assembly. He didn’t use
obscene words, but he did make many graphic sexual allusions.
b. Question: Does the First Amendment protect this student’s right to giving a
lewd speech at a high school assembly?
c. No- Although an adult would be allowed to do this, the Court felt that the
rights of students are not the same as the rights of adults in similar settings.
The Court held that the first Amendment does not prevent the school
administration from prohibiting vulgar and lewd speech if it undermines the
school’s educational mission. There is a difference between political speech
and sexual speech.
3. Hazelwood School District v. Kuhlmeier (1988)
a. Facts of case: The school newspaper at Hazelwood East High School was
written and edited by students. In one issue, the principle found 2 of the
articles to be inappropriate, and removed them from publication. The student
writers and editors brought this to court.
b. Question: did the principle’s deletion of these stories violate the students’
right to free speech as protected by the First Amendment?
c. No- the First Amendment does not require that school officials promote
particular types of speech. The Court said that schools need to be able to set
high standards for the news stories and that these schools also reserve the right
to refuse writing that goes against what the school promotes.
Speech and Unlawful Action
1. Schenck v. United States (1919)
a. Facts of case: During World War I, Schenk mailed letters to draftees saying that
the draft was a corrupt system motivated by the country’s capitalists. The
letters encouraged peaceful action, such as petitions. Schenck was charged
with trying to violate the Espionage Act.
b. Question: Are Schenck’s words protected under the First Amendment?
c. No- “The character of every act depends on circumstances.” These letters tried
to persuade young men to avoid the draft, and when speech creates an
immediate threat of criminal action, it is not protected under the First
Amendment.
Advocacy of Abstract Doctrine
1. Dennis v. United States (1951)
a. Facts of case: In 1948, the leaders of the Communist Part of America were
arrested and charged with violating provisions under the Smith Act which made
it unlawful to conspire, teach, and advocate the overthrow or destruction of
the United States government.
b. Question: Do the Smith’s Act’s restrictions violate the free speech clause of the
First Amendment?
c. No- the provisions do not “inherently” violate the First Amendment. There is a
difference between teaching philosophy and teaching the active advocacy of
the belief. The advocacy of the Communist Part of America presented danger
to the public.
2. Brandenburg v. Ohio (1969)
a. Facts of case: Brandenburg was the leader of the Ku Klux Klan, and made a
speech at a Klan meeting that was convicted under an Ohio criminal
syndicalism law. This law made it illegal to advocate crime and violence as
means of acquiring political reform.
b. Question: does this Ohio criminal syndicalism law violate Brandenburg’s free
speech as protected in the First Amendment?
c. Yes—two pronged test to evaluate speech acts:
i. Speech can be prohibited if it creates unlawful action
ii. It is likely to produce lawless action
The criminal syndicalism law did not take into view whether or not the speech
would actually create unlawful action.