Freedom of Speech
What is Free Speech?
Incorporation
 Amendment 1: “Congress shall make no law…”
 Gitlow v. N.Y. (1925): 14th Amendment’s “due process
clause” protects citizens’ fundamental rights (like
freedom of speech) from violations by state and local
governments as well as by congress.
 Most, but not all, of the rights in the Bill of Rights
have, one by one, been ruled to be “incorporated” by
the due process clause. Most recently, the right to
bear arms (McDonald v. Chicago, 2010)
3 Types of “Speech”
 Pure Speech
 Most strongly Protected
 Speech Plus
 Speech accompanied by actions such as marching,
demonstrations, picketing, etc.
 Subject to restriction that do not apply to pure speech
 Symbolic Speech
 Using actions and symbols to express opinions
 Court decisions most mixed: Burning draft cards not
protected; burning the flag is. (Burning the Koran?)
Protected/Not Protected
 “Clear and Present Danger” Test
 Schenck v. U.S. (1919): Speech can be suppressed
if there is an imminent threat to society, e.g.
falsely shouting “fire!” in a crowded theater.
 Bad Tendency Doctrine
 Gitlow v. N.Y. (1925): Speech can be limited when it
is likely to lead to something bad happening
 Today, however, the preferred position
doctrine, gives speech precedent over other
values.
Protected/Not Protected (Cont.)
 Prior Restraint
 Definition: Blocking speech (or press) before
it is given
 Deemed unconstitutional by the Supreme Court
(Pentagon Papers)
Not Protected
 Sedition
 Not protected, but what is it?
 In the past, could be mere criticism of gov’t (Alien and
Sedition Act).
 Smith Act (1940): Sedition=Advocacy of violent
overthrow of the government
 Recently, Supreme Court has narrowed definition further.
Speech can be prohibited as seditious, only when…
 There is an imminent danger of an actual
overthrow, and
 People are actually urged to do something,
rather than merely believe something
Not Protected (Cont.)
 Defamatory Speech
 Definition: false speech that damages a persons
reputation
 “Slander” if spoken, “libel” if written.
 “Fighting Word”
 Definition: “[Words] that by their very utterance inflict injury
or tend to incite an immediate breach of the peace.”
Not Protected (Cont.)
 Obscenity
 Not protected, but difficult to define
 “I know it when I see it” –Justice Potter Stewart
 Student Speech
 Not protected when it disrupts education
• Tinker v. Des Moines School District (1969)
• Bethel School District v. Fraser (1986)
• Hazelwood School District v. Kuhlmeier (1988)