Freedom of
Speech and Press
Freedom of Expression
• The 1st amendment has two
guarantees on freedom of
expression
#1 Guarantee to each person a
right of free expression
[spoken or written] by all
means of communication
#2 Guarantee all persons a
wide-ranging discussion of
public affairs
What is the real intention of this
freedom?
• Protect the expression of unpopular views
• BUT it doesn’t protect all forms of
expression because no person has
unbridled right to free speech
Origins of the Expression Clauses
• There are three important
factors which led to
increased sentiment for
freedom of speech in
America
• English origins
#1
– Kings during the 17th and 18th century England
tried to suppress criticism of the government
• Passed Licensing act of 1662 which authorized royal
officials to investigate and seize printed works,
especially if it wasn’t licensed before
#2
• Attacks on Free Expression in the
Colonies
– Early colonists used methods to suppress
criticism and dissent
• Fines
• Imprisonment
#3
• The Constitutions of the States
– Virginia adopted a state constitution which
began with a Declaration of Rights that
included freedom of the press
– Constitution of Pennsylvania contained
provisions for freedom of the press, speech,
and petition
What is Speech?
• Any form of communication
• Verbal and NonVerbal
Pure Speech
• Peaceful expression of
thoughts
• Ie: campaign speech, chat with
a friend
Speech Plus
• Verbal expression + Action
• Marching or Demonstrating
• Not obstruction of traffic,
blocking sidewalks,
endangerment
Symbolic Speech
• Nonverbal expressions
• Wearing arm bands, picketing,
burning draft cards, burning
the flag
Spence v. Washington
• College student attached a peace symbol to a U.S.
flag and hung it upside down the window of his
private apartment to protest military action in
Cambodia during the Vietnam War and killing of 4
students at Kent State
• Convicted of violating a state statute which made it
a crime to place a mark or picture on the U.S flag
• DECISION: Supreme Court saw conviction as a
violation of his 1st amendment because this was a
case “of prosecution for the expression of an idea
through activity”
– 1st amendment protects actions that express an
idea just as it protects what people say and
write
Balance
• Free Speech is limited enough
to keep order and maintain
your natural rights.
Limited Speech: 3 types NOT
supported by 1st Amendment
A. National Security
During WWII and Cold War, laws
were passed to check and control
persons whose, by written or
spoken word, advocated violence
against the government and its
actions
Limited Speech
B. Fighting Words
These are words which can be
expected to provoke a hostile
reaction in a reasonable person
C. Lewd, obscene, profane, libelous,
and fighting are not protected
Fighting Words
• Provoke someone to fight.
Slander
• A statement in public that
holds a person up for
contempt, ridicule, or hatred.
Libel
• Published Report of falsehoods
intended to injure someone’s
reputation.
• Example Tiger Woods’ ex-wife, suing a
Irish newspaper for saying she posed
nude.
Clear and Present Danger Test
Schenk v. United States 1919
Schenk distributed pamphlets urging men to
resist the draft during WWI. Arrested
Constitutional
Government may only silence speech
when there is a clear and present danger
Wartime speech can be limited if it
threatens national security.
Bad Tendency Test
Gitlow v NY 1925
Published pamphlets urging a violent
revolution and overthrow of the
government for socialism.
Constitutional:
Red Scare begins.
Any speech intended to incite crime or
disturb the peace. (only lasts about 10
years)
Dennis v. United States 1951
Clear and Probable Danger
• 11 leaders of the Communist Party were
arrested under treason in 1951 for using
Communist writings that
Compelled a gov
overthrow.
• Constitutional
Yates v. United States 1957
• 89 people were convicted for the same
reason six years later.
• Found Unconstitutional
• Made a distinction between advocating the
overthrow of the government and actually
doing so
Brandenburg v. Ohio 1969
Now accepted Brandenberg Test
• Found that even advocating a violent
overthrow is protected
• Need to show that there is actually
immediate actions, and likely to produce a
result.
FREEDOM OF THE PRESS
4chan.org/b/
Ancient Aliens did this
Prior restraint
• Censorship
• Government has no right to
restrain speech before it is
expressed.
New York Times v. United States
• New York Times was about to publish the
Pentagon papers, which told the secret
history of the U.S. GOV involvement in the
Vietnam War. GOV wanted a court order
to stop printing, claiming it threatened
national security
• Found constitutional, rejected plea to ban
publication.