Pure speech

Freedom of Speech
1-Why does the First Amendment exist?
To protect the expression of unpopular ideas
Those who support democracy value the right of
expression for people with different opinions from their
Pure speech-Verbal expression of thought and opinion
before an audience that has chosen to listen.
Can be calm or passionate
Because pure speech relies on the power of words to
communicate ideas, the Supreme Court traditionally has
provided the strongest protection for pure speech
against government control.
Symbolic speech-Sometimes called “expressive
conduct,” it involves the use of actions and symbols, in
addition to OR instead of words, to express opinions.
Vietnam War: burning flag; draft card.
Because symbolic speech involves actions, the
Government can sometimes restrict it in ways that do
not apply to “pure speech.” [ex, if it endangers public
Tinker v. Des Moines
Tinker v. Des Moines
In December 1965, a group of five students, including
lead plaintiff John Tinker and his sister Mary Beth Tinker,
wore black armbands overlaid with a white peace sign to
protest the war in Vietnam. They were suspended from
The court voted 7–2 in favor of Tinker, finding that the
suspension had violated the First Amendment.
"In wearing armbands, the petitioners were quiet and
passive. They were not disruptive, and did not impinge
upon the rights of others or disrupt school activities
United States v. O'Brien
On March 31, 1966, David Paul O'Brien and three
companions burned their draft cards’
•The court ruled 7–1 against O'Brien. In the opinion of
the court, Chief Justice Warren wrote that while the First
Amendment does protect freedom of speech, it does not
protect all things that may extraneously be labeled
'symbolic speech'.
•As such, O'Brien's protest was not protected because
the United States had a compelling interest [the war
effort] in preventing the destruction or mutilation of draft
Cohen v. California
In 1968, Paul Cohen entered a Los Angeles Courthouse wearing a
jacket that displayed the words "F*** the Draft.” Though he had
removed the jacket and placed it under his arm before entering the
courthouse, a police officer witnessed the jacket and slogan in the
corridor and arrested him for "willingly and unlawfully and maliciously
disturbing the peace and quiet by engaging in tumultuous and offensive
The Court voted 5–4 in favor of Cohen. "Absent a more compelling
reason for its actions, the State may not, consistently make the simple
public display of this single four-letter expletive a criminal offense." In
the court's opinion, "one man's vulgarity is another's lyric".
The statement on the jacket did not disrupt the war effort like the
burning of a draft card.
Texas v. Johnson (1989)
Texas v. Johnson
•In 1984, during a protest against the policies of the Reagan
administration in Dallas, Texas, Gregory Lee Johnson doused an
American flag that was given to him by a fellow demonstrator with
kerosene and set it alight while those around him chanted "America the
red, white and blue, we spit on you."
•The court ruled 5 to 4 in favor of Johnson.
“because such other actions in relation to the flag (such as saluting, and
displaying) are considered to be a form of expression, so must too the
burning be”
Act was political in nature; was not meant to incite lawless action.
Free Speech and Schools Scenarios
Scenario A
The student’s language was offensive and the punishment did violate his
First Amendment rights.
The vulgar language the student used was not the same as political
Do you agree? Explain
Scenario B
School officials had reason to believe that the student’s drawing of the
Confederate flag could cause a major disruption at the school or interfere
with the rights of others.
Outside of school, this form of political speech would be protected by the
First Amendment
Do you agree? Explain
Scenario C
The student’s rights had not been violated.
The First Amendment does not protect words that are intended to cause
injury or cause a person to fear they will be harmed.
“When a high school student refers to a teacher in a public place by a
lewd and obscene name in such a loud voice that the teacher and others
hear the insult,” this action may be deemed a disciplinary matter for the
school authorities to decide.
Do you agree? Explain
Scenario D
The student’s website did not interfere with learning in the classroom.
School officials could not punish a student for the content of a personal
website unless it disrupted school activities.
Disliking or being upset by the content of a student’s speech is not an
acceptable reason for limiting student speech.
Do you agree? Explain
Scenario E
Threats of physical violence are not protected by the First Amendment
Do you agree? Explain
6-What effect did the following cases have on the
free speech of students?
Tinker v. Des Moines-Students do not give up all of
their free speech while in High School
Hazelwood SD v. Kuhlmeier- Limited speech in
schools. School officials have broad authority to
regulate student speech in school-sponsored
newspapers, theatrical productions and other activities.
6-What effect did the following cases have on the
free speech of students?
Bethel SD v. Fraser-First Amendment does not prevent
school officials from suspending students for lewd or
indecent speech at school events even though the same
speech would be protected outside the school
Morse v. Frederick-School officials may punish
students for displaying a banner at a school-sponsored
event that officials believed condoned the use of illegal
Sedition Speech Cases
3-What three constitutional tests does the United
States Supreme Court use to set limits on free
speech? List and explain each of the three.
1-Clear and Present Danger
When the speech in question clearly presents an
immediate danger, the First Amendment does not
protect it.
If the conflict is between free expression and public
safety, judges use the “Clear and Present Danger” test.
3-Preferred Position Doctrine [Developed in the 1940s]
First Amendment freedoms are more fundamental than other freedoms because they provide the basis of all liberties.
Thus, First Amendment freedoms hold a preferred position over competing interests. Any law limiting these freedoms should be presumed unconstitutional unless it can be shown to be absolutely
2-The Bad Tendency Doctrine
More restrictive than “clear and present danger” principle.
Gitlow v. New York: speech could be restricted even if it had only a tendency to lead to illegal action. [Not often used by the CT. since the 1920s.]
Seditious speech-[not protected]
Speech urging resistance to lawful
authority or advocating the
overthrow of the government.
Schenck v. US
Schenck v, US [1919]
Schenck, attempted to distribute thousands of flyers to American
servicemen recently drafted to fight in World War I.
• Schenck's flyers urged draftees to petition for repeal of the
Schenck was charged by the government with violating the
Espionage Act. The government alleged that Schenck violated
the act by conspiring "to cause insubordination ... in the military
and naval forces of the United States."
Schenck responded that the Espionage Act violated the First
Amendment of the Constitution, which forbids Congress from
making any law abridging the freedom of speech.
Schenck v, US [1919]
The Supreme Court upheld Schenck's conviction and ruled that
the Espionage Act did not violate the First Amendment.
The Court maintained that Schenck had fully intended to
undermine the draft because his flyers were designed to have
precisely that effect.."
"The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent."
Against this test, the Court upheld the Espionage Act and affirmed
Schenck's conviction, finding that his speech had created a
clear and present danger of insubordination in wartime.
Abrams v US [1919]
Their offense: distributing pamphlets that criticized
the U.S. military's recent deployment of troops to
Russia and that, in one case, advocated a general
strike in factories producing military goods.
the Court voted 7-2 to uphold the convictions of Abrams
"the language of these circulars was obviously
intended to provoke and encourage resistance to
the United States in the war" -- and that the
defendants' actions had therefore passed the "clear
and present danger" threshold.
Yates v US [1957]
Members of the Communist Party were charged and convicted with violating
the Smith Act.
Yeats and 13 others were charged with conspiring to advocate and teach the
duty and necessity of overthrowing the US Government by force and violence
The Smith Act made it unlawful to advocate or organize the destruction or
overthrow of the US government by force
Yeats claimed that the Communist Party was engaged in passive
political activities and any violation of the Smith Act must involve
active attempts to overthrow the government
Yates v US [1957]
Ruled 6-1 in favor of Yates
To “organize” meant to form an organization, NOT to take action
on behalf of an organization.
The Smith Act did not prohibit the idea of forcible overthrow of th
government, just the actual action of trying to overthrow the
It is not illegal to say the government should be overthrown
only if the speech urges one to take that action
Brandenburg v. Ohio [1969]
An Ohio law [Criminal Syndicalism Act] made it illegal to
advocate “crime, sabotage, violence or terrorism as a
means of accomplishing industrial or political reform.
It also prohibited “assembling with any society, group or
assemblage or persons formed to teach or advocate the
doctrines of criminal syndicalism.
A leader of the KKK made a speech promoting the
taking of revenge against the government if it did not
stop suppressing the white race and was convicted
under the Act.
Brandenburg v. Ohio [1969]
The Act made it illegal to advocate or teach doctrines of
violence, BUT DID NOT address the issue of whether
such teaching would actually incite lawlessness.
The mere act of teaching of the need to resort to
violence is not the same as preparing a group for
violent action
One is free to advocate force as long as the speech
does not incite people to use force.
Fighting Words
Chaplinsky v. US
Chaplinsky v. New Hampshire [1942]
“fighting words”
Words that are so insulting that they provoke immediate
Fight-provoking language that tends to incite violence
"The test is what ... [persons] of common intelligence
would understand would be words and expressions
which by general consent are 'fighting words' when said
without a disarming smile. . . . Such words, as ordinary
... [persons] know, are likely to cause a fight."
In 1941, Walter Chaplinsky, a Jehovah's Witness, was
using the public sidewalk as a pulpit in downtown
Rochester, passing out pamphlets and calling
organized religion a "racket."
After a large crowd had begun blocking the roads and
generally causing a scene, a police officer removed
Chaplinsky to take him to police headquarters. Upon
seeing the town marshal Chaplinsky attacked the
marshal verbally. He was then arrested.
The complaint against Chaplinsky stated that he
shouted: "You are a God-damned racketeer" and "a
damned Fascist". Chaplinsky admitted that he said the
words charged in the complaint.
Chaplinsky was arrested for violating this New
Hampshire statute which:
“prohibited any person from addressing any offensive,
derisive or annoying word to any other person who is on
any street or public place or calling him by any derisive
Did the statute or the application of the statute to
Chaplinsky’s comments violate his free speech
rights under the First Amendment of the
There are some classes of speech that have never
been protected by the First Amendment of the
These include “fighting words,” words that inflict
injury or tend to excite an immediate breach of the
Such words are of such little social value that any
benefit they might produce is far outweighed by
their costs on social interests in order and morality.
Libel and Slander
Defamation- False speech that damages a person’s
good name, character or reputation
Falls into 2 categories:
Slander- Spoken defamation
Libel- Written defamation
Defamation: Public v. Private Person
Celebrity Defamation Cases
Although many celebrities make it into the headlines for
showcasing their wealth and success, nothing grabs the
media’s eye more than one trying to cover their tracks.
Gossip columns live up to their name and often lead to
celebrities becoming the subject of false rumors that can
damage their reputation.
Kiera Knightley
After the Daily Mail printed accusations that Kiera Knightley
had an eating disorder and she was partly responsible for the
death of a young girl with anorexia, the actress went on to
win a high court damages libel against the story. The £3,000
damages that she received from the case were donated to an
eating disorder charity.
David Beckham
Footballer David Beckham was unsuccessful with
his libel and slander case when he tried to sue a US
magazine for claiming he had slept with a prostitute.
Without any proof that the magazine was acting
maliciously, David was unable to win the court ruling
and his $25 million claim was dismissed.
Tom Cruise
Cruise is demanding $50 million from Bauer Publishing Company for tabloid
stories suggesting that the divorce-torn actor had abandoned his daughter, Suri.
Two stories are at the center of the complaint: A July 30 issue of Life & Style,
which featured the headline “Suri in Tears, Abandoned by Her Dad,” and an
Oct. 1 issue of In Touch, which had the headline “Abandoned by Daddy” over a
photo of Suri.
Cruise’s laywer,said in the lawsuit that the headlines are malicious and
deceptive, and that the stories do not contain facts to back them up.
Standards of proof for public and private persons
Public Person
Private Person
Damage their reputation
Damage their reputation
Be False
Be False
Knew it was false or
Reckless disregard for the truth
Ways a person can be damaged by slander/libel
Lose job
Lose reputation
Lose spouse
Lose business
Why do you think there is a higher standard of proof for a public person trying to collect damages than there is for a private person.
Should public people be able to be criticized more than a private person?
Worthwhile Speech
Expression that has social value as a step to truth:
(news reports, editorial/opinion columns, speeches
on social issues, political debates, etc.)
Worthless Speech
Expression that has little, if any, social value as a step to
1.The lewd, obscene, and profane
2. Slander and libel
3. Insulting or "fighting" words
What types of speech does the First Amendment
NOT protect?
Fighting Words