First Amendment: Freedom
of Speech
• Congress shall make no law… “abridging the
• In the United States we each have the right to
speak our mind (within some broad limits).
A Balance
• In their attempt to draw the line
separating permissible from
impermissible speech, judges have had
to balance freedom of expression
against competing values like
– Public order
– National security
– and the right to a fair trial
Principles of Free Speech
• Types of Speech
– Pure speech: only spoken words
• Ex. Debates and public meetings
• Given greatest protection
– Speech-plus: speech combined with action
• Ex. Demonstrations and picketing
• speech is generally protected, action may be regulated
– Symbolic speech: conduct that conveys a message in
itself, without spoken word
• Ex. Displaying a communist flag, wearing an armband
• Some is protected, some isn’t
Flag Burning
• Burning the American
flag is a form of
protected symbolic
• The Supreme Court
upheld that right in a
5-4 decision in Texas
v. Johnson (1989).
Limits on Free Speech
• Obscenity – anything that depicts sex or nudity in a way
that violates society’s standards of decency
– Difficult to define because public standards vary from
time to time, place to place, and person to person
• Defamation – damaging another person’s reputation
through false information
– Libel is a written statement that defames the character of a
– Slander is spoken words that defame the character of a
– In the United States, it is often difficult to prove libel or
slander, particularly if “public persons” or “public
officials” are involved.
• Fighting Words – abusive or insulting language
that “have a direct tendency to cause acts of
– Hate speech – should it be protected or not?
• Imminent Lawless Action – speech cannot be
punished, even when it advocates illegal action,
unless it is “directed to inciting or producing
imminent lawless action” and is likely to do so
• Public Forums
– Places such as a street or park that is traditionally used for
freedom of speech
– Time, place, and manner: government can regulate where,
when, and how freedom of speech may be exercised
• Speech in Schools
– Teachers and students do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse
– Free speech can be limited if students’ actions would
“materially or substantially disrupt” the school’s
educational purpose
– Free speech can be limited if it is vulgar and lewd and
undermines the school’s basic educational mission
– Schools can control expression that people might believe
the school has endorsed
• Prior Restraint – a government action that
prevents material from being published.
• The Supreme Court has generally struck
down prior restraint of speech and press
(Near v. Minnesota, 1931).
• In NYT v. United States (1971) the Court ruled
that the publication of the top-secret
Pentagon Papers could not be blocked.