Bell work
Which two clauses of
the 1st Amendment
have to do with
Freedom of Religion?
(Page 358)
TAKE NOTES OF ANYTHING IN:
GREEN
Freedom of
Speech
CHAPTER 13, SECTION 3
Essential Question: How
does freedom of speech fit
within the Constitution?
Morse v.
Frederick
As the Olympic torch approached in Juneau, Alaska, in 2002 on the
way to Salt Lake City, then-high school student Joseph Frederick
and friends, excused from class at the high school across the street
for the event, held up a banner that sparked a 2007 Supreme Court
case of Freedom of Speech.
 Frederick sued, claiming his constitutional rights to free speech were
violated. His suit was dismissed by the federal district court, but on
appeal, the Ninth Circuit reversed, concluding that Frederick's
speech rights were violated.
 The case made its way to the Supreme Court in which, in a 5 to 4
decision, concluded that the First Amendment does not prevent
educators from suppressing, at a school-supervised event, student
speech that is reasonably viewed as promoting illegal drug use.

Quick-write: What is your opinion of the outcome? Do you think
Frederick should have won, or did the Court make the right
decision? Explain.
Types of Speech

The First Amendment says Congress can
make no law “abridging the freedom of
speech.” This raises the question of “what
exactly is speech?”

The Supreme Court has distinguished two
categories of speech that the First
Amendment protects:

Pure Speech: the verbal expression of thought
and opinion before an audience that has
chosen to listen. Example: Speaking
passionately to a crowd.

Symbolic Speech: involves the use of actions
and symbols, in addition to or instead of
words, to express opinions. Example: Burning
the Flag in protest of war.
Symbolic Speech and the
Supreme Court

In dealing with Symbolic Speech issues, the Court uses
a three-part test established in a 1968 case.

In the 1968 case of United States v. O’Brien, the Court
upheld the arrest of four young men who had burned
their draft cards in protest to the Vietnam War.

The Symbolic Speech three-part test was established as:

The Court ruled that a gov’t can regulate or forbid expressive
conduct if the regulation:

Falls within the constitutional power of gov’t

Is narrowly drawn to further a substantial gov’t interest unrelated to
the suppression of free speech

And leaves ample alternative communication outlets.
Regulating Speech

Since free speech must be balanced against the need to
protect society, some restraints on pure speech exist.


An example of this is seditious speech: speech urging
resistance to lawful authority or advocating the overthrow of
the government.
Since philosophies differ, the issue of free speech is often
wrestled in the Court.

Because of this, the Court developed three constitutional
tests for examining free speech:

The “clear and present danger” rule

The bad tendency doctrine

And the preferred position doctrine
The Clear and Present
Danger Test

When the speech in question clearly presents an
immediate danger, the First Amendment does not
protect it. But how is this determined?

In the 1919 case Schenck v. United States the Supreme
Court held that an anti-war activist did not have a First
Amendment right to advocate draft resistance. Justice
Oliver Wendell Holmes, Jr. set forth the foundations of
clear and present danger.

Clear and present danger: a standard for judging when
freedom of speech can be abridged; "no one has a right
to shout `fire' in a crowded theater when there is no fire
because such an action would pose a clear and present
danger to public safety.”
The Bad Tendency and
Preferred Position Doctrines

The bad tendency doctrine: a test which permits
restriction of freedom of speech by government if
it is believed that a form of speech has a sole
tendency to incite or cause illegal activity.

This principle has been used in very few cases, out
side of Patterson v. Colorado in 1907, Gitlow v.
New York of 1925 and a few others.

Developed in the 1940s, the preferred position
doctrine holds that First Amendment freedoms are
more fundamental than other freedoms because
they provide the basis of all liberties.
Other Types of
Unprotected Speech

Defamatory speech: false speech that damages a person’s
good name, character, or reputation


Falls into two categories:

Slander: defamatory statements that are spoken

Libel: defamatory statements that are written
The 1964 case of New York Times Co. v. Sullivan set forth that
defamatory speech is protected if unintentional.

“Fighting words” are not a protected form of speech. “Fighting
words” are words so insulting that they provoke immediate
violence.

Decisions of cases in the Court have also limited student
speech in schools.
Closing Writing Activity

Do you believe that it is ever
acceptable for the government to
restrict free speech?
 If
so, explain under what
circumstances.
 If
not, explain why you believe
government should never be allowed
to abridge freedom of speech.