THE FIRST
AMENDMENT SPEECH
Freedom of Expression – Are there limits on
your free speech?
• Protected Speech – all speech is
presumed to be protected by
the First amendment
• The standard of review applied
to all content-based regulation is
Strict Scrutiny (Fundamental
Right)
• However, there may be times
where your speech is
unprotected
Freedom of Expression
• Unprotected Speech
• Advocacy of Imminent
Unlawful Conduct
• inciting a riot
Freedom of Expression
• ‘advocating a riot’ in the past
had different standards
• Schenck v. US (1919)
• The Clear and Present Danger
Test
• Socialist party’s printing of antidraft leaflets
• Abrams v. US (1919)
• Bad Tendency Test
• Dennis v. US (1951)
• Clear and Probable Danger
Freedom of Expression
• Unprotected Speech
• Brandenberg v. Ohio
• (1969) Imminent Danger test
• Advocated racial strife during
a televised KKK rally
• This test protects the
advocacy of lawlessness
except in unusual
circumstances
• Today, your speech is not
protected ONLY when it
actually causes imminent
danger
Freedom of Expression
• Unprotected Speech
• Fighting Words
• words with a direct tendency to
cause acts of violence
• Gov’t’s interest in keeping
peace outweighs free speech
interest
Freedom of Expression
• Unprotected Speech
• Fighting Words
• Chaplinsky v. New Hampshire
(1942) – Fighting words
• Chaplinsky called a cop a
“Racketeer” and a “Fascist”
Freedom of Expression
• Unprotected Speech
• Obscenity – What’s obscene?
Miller v. California (1973)
Miller test –
• Does it appeal to a prurient
interest?
• Does it lack literary, artistic,
political, or scientific value?
• Does it violate Contemporary
Community Standards?
Important Free Speech Cases
• Cohen v. California (1971) applies
Brandenburg to Chaplinsky
• Cohen wore a coat with “Fuck the
Draft” in large letters on the back to the
courthouse
• Buckley v. Valeo (1976)
• Campaign expenditures are a form of
free speech
• Texas v. Johnson (1989)
• Flag burning
• R.A.V. v. St. Paul (1992)
• Hate Speech – okay if no actual
Lawlessness occurs
• Virginia v. Black (2003)
• Cross burning potentially OK
Freedom of Expression
• Defamation – Not Protected
• injury to reputation or privacy
i.
New York Times Test –
public officials or figures
may not recover damages
for defamation unless the
statement was made with
actual malice
ii.
Media use of info – press
can release the name of a
rape victim inadvertently
released by police
Freedom of Expression
• False Advertising - Not
protected
• can prohibit advertising illegal
conduct
• Partially protected Speech
• Commercial speech
• cigarette ads, hard liquor ads
Freedom of Expression
Also Not Protected
• Disclosure of factual info
(exposing CIA)
• Threats to high public officials
• Slander – false and malicious
public statement
• Libel – false and malicious
printed statement
(However, almost impossible to
prove actual malice)
Freedom of Expression – When can speech
be restricted?
• There are times where speech
can be taken away if it is for the
betterment of the whole and is
content neutral in how it is
applied
• Content neutral means: No
matter what the message says,
no one can use free speech.
Not because of the content,
but other factors affecting the
usage of that space.
Content-neutral regulation aka:
Time, Place, and Manner
Freedom of Expression
Time, Place, and Manner
• Public Forum – usually
unrestricted free speech
allowed
i.
A type or kind of public
property – sidewalks, streets,
public parks, designated
meeting held
If the government is going to
limit your speech it:
• Must be content neutral
• Narrowly tailored
• Significant gov’t interest (noise
control, safety)
• Alternative channels available –
can’t close off only channel for
communication
Freedom of Expression
Time, Place, and Manner
• Nonpublic Forum
i.
Most public property is
NOT a public forum
i.
Schools – Not a public
forum
Freedom of Expression
Time, Place, and Manner
• Private Forum
• Right NOT to speak, private
individuals can choose what speech
to be associated with
• Hurley v. Irish American Gay,
Lesbian, and bisexual group of
Boston (1995)
• Boston St. Pat’s day Parade was
ruled a private forum
Boy Scouts of America v. Dale
• James dale lost his
appeal to the Supreme
Court claiming he was
discriminated against for
being gay
• Court found Boy Scouts
can choose who to
associate with
Important Free Speech Cases
Freedom of Expression in
Schools
• W.V. state Bd. Of Ed. v. Barnette (1943)
• Jehovah’s Witnesses right NOT to salute the flag
• Tinker v. Des Moines (1969)
• The wearing of black armbands to protest the
Vietnam War
•
Students do NOT shed their right to the freedom
of expression at the schoolhouse door
• Bethel School District no.403 v. Fraser (1986)
• Content of a speech at school can be controlled
• Morse v. Frederick (2007)
• Drug references are controllable by schools
"'I know a man who is firm -- he's firm in his pants, he's firm in his
shirt, his character is firm -- but most . . . of all, his belief in you,
the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it in. If
necessary, he'll take an issue and nail it to the wall. He doesn't
attack things in spurts -- he drives hard, pushing and pushing
until finally -- he succeeds. Jeff is a man who will go to the very
end -- even the climax, for each and every one of you. So vote
for Jeff for A. S. B. vice-president -- he'll never come between
you and the best our high school can be”
Bethel v. Fraser speech in question