Freedom of Speech
First Amendment
Expression, Speech and Symbolic
Speech
Why does Free Speech matter?
•
•
•
•
•
•
•
•
•
•
Natural rights
Social contract (authority comes from people)
Tyranny of majority
Open society (no censorship)
Free markets (competition of ideas)
Truth
Majority rule
Protect individual
Checks and Balances
Democracy does not silence opposition
Limits to Free Speech
Supreme Court balances individual’s rights vs. promote public good
Majority cannot silence the minority
1.”Clear and present danger”- you cannot shout “Fire” in a crowded movie theater, you cannot
endanger national security, print unauthorized data about how to build atomic weapons, you cannot
use speech to cause a riot or a soldier to desert from military. You cannot burn your draft card
2. Sedition- Supreme Court limits seditious speech- conduct or language including rebellion against
government. You cannot advocate violent overthrow of US government.
3. Libel. You cannot put in writing and publish false stories to damage a person’s reputation
4. Obscenity- you cannot express yourself in obscene materials or send obscene emails
5. “Fighting words”- you cannot use offensive, insulting language toward a person in public places
6. False advertising. Companies cannot make false claims in advertising. Some advertising banned even
if not false, no cigarette ads on TV or radio
7. Minors. Minors do not have right to attend R-rated movies, adult bookstores, etc. Students do not
have full rights in schools.
Landmark Cases
Schenck v. United States, 1919
“clear and present danger”During WWI, Congress passed Espionage Act, making it a crime to oppose the war. Schenck was convicted of
urging draft resistance. Supreme Court ruled agains him, explaining free speech is not absolute. Court limits free speech during wartime. Antiwar protests presented a “clear and present danger”
United States v. O’Brien, 1966
Federal law makes it illegal to destroy or mutilate your draft card. O’Brien burned his and claimed expressing his
opposition to Vietnam War. Supreme Court ruled against him
Brandenburg v. Ohio, 1969
KKK rally- Supreme Court ruled in favor and revised “clear and present danger rule”- speaker must explicitly urge
lawless behavior and the lawless activity is likely to be “imminent”
Tinker v. Des Moines School District, 1969
Wearing and armband is acceptable free expression
Texas V. Johnson
Symbolic speech! Supreme Court ruled flag-burning is a way to oppose government policies and is
protected by 1st Amendment
Virginia v. Black
Virginia had a law against burning a cross. Cross-burning always been the KKK signal of imminent
violence against African-Americans. Three guys burned a cross but said they did not intend to intimidate
people. Supreme Court ruled in their favor.
Landmark Cases
ACLU v. Reno, 1997
In1996 Congress passed the Communications Decency Act, making it a
crime to put indecent material on the internet. Supreme Court struck
down the law, ruling that the government cannot censor the internet
Apollo Media Corporation v. US, 1999
The Supreme Court ruled that it is illegal for anyone to send obscene
email
US v. American Library Association, 2003
Congress passed a law to protect children from viewing pornography
on computers at public libraries. If public library wants federal funds, it
had to put filters on its computers to block obscenities. Supreme Court
ruled in favor of filters- to protect children.
Symbolic Speech
Legal
1. Wearing a black armband
(Tinker)
2. Burning the American Flag
(Texas v Johnson)
3. Burning a cross- if your intent
is not to intimidate people
4. Picketing
5. Campaign contributionscourts held as “symbolic”
way of supporting a political
candidate..in politics,
“money is speech”
Illegal
1. Burning your draft card
Hate Speech
• Hate speech is speech
that offends, threatens or
insults groups based on
race, color, religion,
national origin, sexual
orientation, disability or
other traits.
• Not protected if it incites
violence or prejudicial
action against a protected
group of people
• Protects speech, not
behavior
• Not the same as “hate
crime” laws
• Hate Crime Laws are
“enhancements”