First Amendment Rights to Free Speech and Press
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Democracy depends on a free exchange of
ideas.
Volatile area of constitutional interpretation
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Slavery, the Civil War, and Rights Curtailments
 Lincoln suspended the free press provision of the First Amendment as
well as the writ of habeas corpus.
▪ Ordered the arrest of the editors of two New York papers who were critical
of him
▪ Newspaper editor jailed by a military court without having any charges
brought against him
▪ Appealed to the Supreme Court: Ex parte McCardle (1869)
▪ Congress enacted legislation prohibiting the Court from issuing a judgment in any
cases involving convictions for publishing statements critical of the U.S.
▪ Article II gives Congress power to determine the jurisdiction of the Court.
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WWI
 Anti-governmental speech
 Clear and Present Danger Test
▪ Test articulated by the Supreme Court in Schenck v. U.S. (1919) to draw the line
between protected and unprotected speech
▪ The Court looks to see “whether the words used” could “create a clear and present
danger that they will bring about substantive evils” that Congress seeks “to
prevent.”
▪ Anti-war leaflets okay during peace, but not permissible during war – too dangerous
▪ But what constituted a danger?
 Direct Incitement Test
▪ A test articulated by the Supreme Court in Brandenburg v. Ohio (1969) that holds that
advocacy of illegal action is protected by the First Amendment unless imminent
lawless action is intended and likely to occur
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Protected Speech and Publications
 Prior Restraint
▪ Court has made it clear that it will not tolerate prior restraint of
speech
▪ New York Times Co. v. US (1971)
▪ Pentagon Papers case
▪ Supreme Court ruled that the U.S. government could not block the
publication of secret Department of Defense documents illegally
furnished to the Times by anti-war activists.
▪ Nebraska Press Association v. Stuart (1976)
▪ Court ruled in favor of press’s right to cover trial.
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Prior Restraint
 Definition: a government preventing material
from being published; censorship;
unconstitutional
▪ Near v. Minnesota (1931)
 May be permissible during wartime
 One may be punished after something is
published.
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Symbolic Speech
 Symbols, signs, and other methods of expression generally also
considered to be protected by the First Amendment
 Stromberg v. California (1931)
▪ Upheld flying of red flag (symbol of opposition to U.S.
government)
 Tinker v. Des Moines Independent Community District School
(1969)
▪ Court upheld wearing of black armbands as protest
against Viet Nam War
 Gregory Johnson and flag burning
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R.A.V. v. City of St Paul (1992)
Two-thirds of colleges and universities have banned a variety of forms
of speech or conduct that creates or fosters an intimidating, hostile or
offensive environment on campus.
Some have created free speech zones.
 These restrict the time, place or manner of speech
 Implication that speech can be limited on other parts of campus
 ACLU a critic a such policies; filed number of suits, but none has
reached the Supreme Court
hate
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Libel
 False written statements or written statements tending to call someone’s
reputation into disrepute
Slander
 Untrue spoken statements that defame the character of a person
New York Times Co. v. Sullivan (1964)
 The Supreme Court concluded that “actual malice” must be provided to
support a finding of libel against a public figure.
 Concept of malice can be difficult and confusing
▪ “knowledge of falsity,” “reckless disregard for the truth”
▪ Malice standards make it difficult for public officials or persons to win libel
cases.
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Fighting Words
 Chaplinsky v. New Hampshire (1942)
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Obscenity
 Roth v. U.S. (1957)
 Congress concerned with obscenity on the Internet
▪ Communications Decency Act (1996)
▪ Prohibited transmission of obscene materials over the Internet to anyone under age 18
▪ Reno v. ACLU (1997)
▪ Law too vague; violated First Amendment
▪ Child Online Protection Act (1998)
▪ Ashcroft v. Free Speech Coalition (2002)
 Court has continued to strike down as unconstitutional Congress’s latest efforts to
limit cyberporn and has blocked enforcement of COPA
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Obscenity
 No clear definition on what constitutes obscenity
▪ Justice Potter Stewart: “I know it when I see it.”
 Miller v. California (1973) stated that materials were
obscene if the work:
▪ appeals “to a prurient interest in sex”
▪ showed “patently offensive” sexual conduct
▪ lacks “serious literary, artistic, political or scientific value”
 Decisions on obscenity are based on local community
standards.
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DeJonge v. Oregon (1937)
 Incorporated the First Amendment’s freedom of
assembly clause
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Among the most controversial, especially in
times of war
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Right to Assemble
 Generally permissible to gather in a public place, but must
meet reasonable local standards, such as fire codes and
apply for permits
 Balance between freedom and order
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Right to Associate
 Freedom to join groups or associations without
government interference
▪ NAACP v. Alabama (1958)