Freedom of Speech
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Seems like a dumb question, but why is it so important to a
democratic government?
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Ability to debate actions and policies of elected officials
Ability to be informed about current issues
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Soooo…..generally, democratic nations allow free speech
that promotes even offensive ideas because suppressing
speech is more dangerous to society.
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Seems simple, right?
But what IS speech?
Principles of Free Speech:
Types of Speech
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1. Pure Speech
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2. Speech Plus
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Only spoken words (debates, public meetings)
Greatest protection under the Bill of Rights
Speech combined with actions (demonstrations / picketing)
Speech portion is generally protected but actions may be
regulated
3. Symbolic Speech
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Conduct that conveys a message in itself without spoken
words
Some forms are protected, some not…
Principles of Speech:
Types of Speech
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3. Symbolic Speech, cont…
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Burning Draft cards – not symbolic speech
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Necessary to government purpose of having an army
Flag Burning – is symbolic speech
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Bedrock Principle: the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable.
Principles of Free Speech:
Over breadth and Vagueness
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Restriction can’t be too vague
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If so, it has a tendency to stifle free expression
Example: case concerning limiting free speech in an airport
terminal but was struck down b/c it did not specify an area
and could prohibit talking in general.
Principles of Free Speech:
Right Not to Speak
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Can force you to be silent but can’t force you to speak
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Pledge of allegiance, for example
Principles of Free Speech
Speech in Campaigns
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Supreme Court has ruled that “money is speech.”
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Campaign laws that restrict donations are legal
Campaign laws that restrict spending are NOT legal
Principles of Speech:
Least Restrictive Means
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No law may restrict / limit freedom of speech if there is
some other way to handle the problem.
Limits on Free Speech:
Public Forums
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Government cannot deny free speech rights in a public form
(park / street) but can regulate the time, manner, and place
(where, how, when).
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Has to be content neutral in its regulation of speech
Can restrict freedom of speech, if content neutral, if the action
interferes with another constitutional right (like abortion
clinics).
Limits on Free Speech:
Obscenity
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Not protected – anything that depicts sex or nudity in a way that
violates society’s standards of decency. Something is obscene if is
has 3 characteristics:
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An average person, applying community standards, finds that it
has an obscene interest in sex.
The work depicts /describes, in a patently offensive way, types of
sexual conduct prohibited by law.
The work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
Notes:
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It’s OK to possess obscene materials for private use.
Government can forbid sending obscene materials via interstate
commerce.
Most strict with child pornography.
Limits on Free Speech:
Defamation
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Damaging another person’s reputation through false
information (slander = spoken; libel = written)
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The truth is always a complete defense against defamation
Accidental speech with no malice intended is OK
Privileged speakers protected – members of Congress and
parents
Limits on Free Speech:
Fighting Words
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1st Amendment does not protect abusive or insulting
language
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Has a direct tendency to cause acts of violence
More like a verbal assault than an exchange of information or
ideas
Hate Speech – the argument protecting this is that it would
violate freedom of speech by deterring what is not
politically correct.
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You can’t punish speech that could be regulated purely on the
basis of content.
Limits on Free Speech:
Commercial Speech
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Government can regulate false advertising.
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Government can restrict advertising on products it has the
power to outlaw
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Alcohol
Tobacco
Limits on Free Speech:
Speech in Special Places
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Restrict it in military bases, prisons, schools
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Schools:
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Free speech can be limited if student actions materially
disrupt the school’s educational purpose (We’ll look at Tinker
v. Des Moines)
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The rights of students aren’t the same as adults (We’ll look at
Bethel School District case)
Can censor school sponsored expression activities
(newspaper) if it relates to a legitimate educational concern.
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Limits on Free Speech:
Unlawful Action
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When does speech advocating unlawful action become more than
free speech?
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Speech must directly incite specific and immediate unlawful acts
in order to be prohibited.
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1. Clear and Present Danger – can punish when it creates an
immediate threat of criminal action or danger.
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Crowded movie theater scenario
2. Advocacy of Abstract Doctrine – forbidden to advocate the
actual violent overthrow of the government (rather than the
concept of advocacy of government overthrow).
3. Imminent Action – Speech cannot be punished even when it
advocates illegal action unless it is “directed to inciting or
producing imminent lawless action.”
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“Let’s overthrow the government” – OK
“Let’s blow up the courthouse tonight at 9 pm” – not OK
Bottom Line:
Limiting Speech
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Freedom of speech is highly protected so a law that restricts
it must pass all the following tests to be constitutional. The
law must:
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Be clearly defined
Limit only unprotected speech
Limit speech as little as possible
Limit speech for reasons other than just its content
Tinker v. Des Moines (1965)
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Now that you know what you know…how did the Supreme
Court decide this case and WHY?
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In a 7-2 decision, the Court found:
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The armbands were “pure speech” and the school’s action was
unconstitutional.
Justice Fortas wrote, “It can hardly be argued that either
students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate…”
The school had NOT demonstrated that the armbands caused
a “material and substantial interference with schoolwork or
discipline” and had merely acted to avoid the “discomfort and
unpleasantness that always accompany an unpopular
viewpoint.”
Tinker v. Des Moines (1965)
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Court decision, cont…
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The school district had NOT banned all political symbols but
had “singled out” the armbands for prohibition
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Allowed campaign buttons, etc.
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Therefore, the limiting of free speech was NOT content netural
Tinker case remains a landmark in upholding the rights of
students in schools to express their views in a peaceful and
orderly way.
Now apply what you have
learned…
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Now read the court cases dealing with school issues and free
speech…use what you have learned to figure out how the
Supreme Court may have decided these cases.
Freedom of Press
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Sometimes lumped in with freedom of speech and just
called freedom of expression.
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One concept you should know is the idea of prior restraint:
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Government action that seeks to PREVENT materials from
being published.
Alternative? Allow the expression to take place and take
appropriate action afterward if found to violate the law,
regulations, or other rules.
Prior restraint prevents censored material from being heard or
distributed at all.
Freedom of Press:
Prior Restraint
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Near v. Minnesota (1931)
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Jay Near’s newspaper, The Saturday Press, a small local paper, ran
countless exposes of Minneapolis’s elected officials’ alleged corruption.
Silenced by a Minnesota Gag Law (Public Nuisance Law).
Critics claimed Near was trying to extort money by threatening to
publish attacks on officials and others.
Court held that the state had no power to limit Near’s freedom of press
and found the gag law to be unconstitutional because it was “prior
restraint.”
Ruling 5-4 (4 of the judges found the nature of the articles to be unworthy
of protection.
Gave newspapers a clearly established freedom to criticize public
officials without fear of retribution, even when charges made by the
papers could not be proven in court. (can still be punished through
libel laws after the fact!)
Exceptions to
Prior Restraint
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Press can be censored in the cases of:
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National security
Control of obscenity
Assembly and Petition
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The government is prohibited from denying people the right
“peaceably to assemble, and to petition the Government for
a redress of grievances.”
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People have the right to meet together and express their
views peacefully
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We can share ideas with each other and make opinions known
to government through initiatives (petitions) designed to force
government to consider an issue or allow a vote.
DeJonge v. Oregon (1937)
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Dirk DeJonge attended a meeting of the American
Communist Party but Oregon state law prohibited
participation in meetings by organizations that called for
revolution against U.S. government.
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DeJonge argued the meeting was peaceful, didn’t discuss any
illegal actions and was protected by First Amendment.
Court agreed.
Edwards v. South Carolina
(1963)
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Group of 187 African American students in South Carolina
who gathered to protest racial injustice.
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Assembly was peaceful but local police told them to leave the
area, fearing the crowd gathering to watch might become
violent.
Students were arrested when they did not leave.
Court ruled that if an assembly is peaceful it cannot be
stopped simply because bystanders are disorderly.
Limits on
Assembly and Petition
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Cannot limit right of assembly and petition based on protesters’
points of view.
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Extreme cases: protesters encouraging others to commit violent
acts.
Can limit in these ways:
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Reasonable restrictions on time, manner, and place
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Require a permit, for example
Denied right to make excessive noise
Kept off of private property
Invading privacy of others
Whatever the limitation, it must serve a clear and valid purpose,
be applied evenly and without regard to the content of the
demonstrators’ message.
Freedom of Association?
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Phrase doesn’t appear in Constitution
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Supreme Court has determined that freedoms guaranteed
by First Amendment DO establish this right, though…
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The right to join with others, share ideas, and work toward a
common purpose.
NAACP v. Alabama (1958)
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State of Alabama tried to force the National Association for
the Advancement of Colored People to give the state a list of
its members.
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NAACP feared that publicizing this would lead to violence
and other harmful consequences.
Supreme Court sided with NAACP in unanimous ruling
saying, “It is beyond debate that freedom to engage in association
for the advancement of beliefs and ideas is an inseparable aspect of
the liberty assured by the…freedom of speech.”