1st Amendment - 5 Freedoms
Congress shall make no law
respecting an
establishment of religion,
or prohibiting the free
exercise thereof; or
abridging the freedom of
speech, or of the press; or
the right of the people
peaceably to assemble, and
to petition the Government
for a redress of grievances.
Freedom
of Speech
NO ONE HAS THE RIGHT TO DO ANYTHING
HE OR SHE PLEASES
• Yes – the Constitution guarantees many
different rights to everyone in the U.S. BUT
those rights must not INFRINGE on the rights
of OTHERS
• Cannot cause HARM to another
The 1st and 14th Amendment serve 2
fundamentally important purposes:
• (1) To guarantee to each person a right of FREE
EXPRESSION
• (2) To guarantee to all persons a full, wideranging discussion of PUBLIC AFFAIRS
“freedom for the thought that we hate,”
Oliver Wendell Holmes, Justice, 1929
Does the First Amendment mean anyone can
say anything at any time?
• NO The Supreme Court has rejected an
interpretation of speech without limits
• Because the First Amendment has such strong language, we
begin with the presumption that speech is protected.
– Over the years, the courts have decided that a few other public
interests — for example,
• national security, justice or personal safety — override freedom of speech.
• There are no simple rules for determining when speech should
be limited, but there are some general tests that help.
NO ONE ENJOYS ABSOLUTE FREEDOM OF
SPEECH
What’s not protected by Constitution:
• (1) Shouting FIRE or BOMB in a crowded
place
– words intended to cause mayhem
• (2) False Advertising
• (3) Libel (print) and Slander (spoken)
– Speech that impugns a person’s reputation
resulting in demonstrable harm, especially (but
not exclusively) financial harm. Penalties are civil
rather than criminal.
NO ONE ENJOYS ABSOLUTE FREEDOM OF
SPEECH
Not protected by Constitution:
• (4) Obscene Words and Printing and Distributing
obscene materials
– Words deemed to be pornographic or against community
standards.
– Ex: This might include using swear words at a circus with lots of
young children around, but would not include the same words
used at a bar.
Supreme Court wrestles with this question:
What LANGUAGE and IMAGES in printed matter, films, and
other materials are, in fact, obscene?
What type of RESTRICTIONS?
There’s a test…
1973 Miller v. California
3-Part Test
Is It Obscene?
MILLER TEST
(1) AVERAGE PERSON (follows contemporary community standards)
finds that the work tends to excite lust
(2)The work depicts and describes sexual content in offensive way
(3)The work lacks serious literary, artistic, political, or scientific value
Local attempts to regulate so-called adult
bookstores and similar places
• 1st and 14th does not PREVENT a city from
REGULATING THE LOCATION of “adult
entertainment establishments”
City of Renton v. Playtimes Theaters, Inc.
-2 theaters to show adult films
OUTCOME – A CITY CAN DECIDE TO BAR THE
LOCATIONS OF SUCH PLACES WITHIN 1000 FT. OF A
RESIDENTIAL ZONE, CHURCH, PARK, SCHOOL
NO ONE ENJOYS ABSOLUTE FREEDOM OF
SPEECH
Not protected by Constitution:
(5) Clear and Present Danger
?? Will this act of speech create a
DANGEROUS SITUATION??
Clear and Present Danger??
• A. Use of words to prompt others to commit
a crime
– A general comment like “people who provide abortions should be
stopped” would not be considered incitement
BUT a leader exhorting believers to carry out divine will by carrying out a
death sentence for abortion providers might be considered
incitement.
Clear and Present Danger??
• B. Fighting
Words
– Words that are specifically intended to provoke an immediate
reaction that would constitute a breach of the peace.
– THREATS Speech that is intended to intimidate. This
would include bullying and specific believable threats
of physical harm. An offhand angry remark like “I
could kill her” would not count, but saying, “I will kill
you” to someone who believes that you have the will
and means to do so would count. This is usually a
criminal matter. (Anthony Elonis Case)
Clear and Present Danger??
C. INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
Extreme or outrageous speech intended specifically to cause an
individual or group distress. Usually a civil rather than criminal
matter.
What about protesting at military funerals?
• Snyder v. Phelps
•
•
"Westboro believes that America is morally flawed; many Americans might feel
the same about Westboro. Westboro's funeral picketing is certainly hurtful and
its contribution to public discourse may be negligible. But Westboro addressed
matters of public import on public property, in a peaceful manner, in full
compliance with the guidance of local officials. The speech was indeed planned
to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral,
and Westboro's choice to conduct its picketing at that time and place did not
alter the nature of its speech.
"Speech is powerful. It can stir people to action, move them to tears of both joy
and sorrow, and - as it did here - inflict great pain. On the facts before us, we
cannot react to that pain by punishing the speaker. As a Nation we have chosen
a different course - to protect even hurtful speech on public issues to ensure that
we do not stifle public debate. That choice requires that we shield Westboro
from tort liability for its picketing in this case."
Clear and Present Danger??
D.
HARASSMENT
Words intended to demean or create a hostile
environment. In this instance, speech is interpreted
not as speech, but as action. This is the basis for
campus and workplace speech codes, where those in
charge have a duty to create a safe environment.
Clear and Present Danger??
E. Seditious Speech
– Advocating or urging attempts to overthrow the
government by force or to disrupt its lawful activities by
violent acts and distributing any material that teaches or
advises violent overthrow
– SMITH ACT (1940)
* You can urge someone to believe something BUT CANNOT
URGE them to DO something
You [students] do not “shed your constitutional
rights when you enter the schoolhouse door”
but school administrators have a far greater
ability to restrict your speech than the
government has to restrict the speech of the
general public.
CANNOT CAUSE A
DISTURBANCE
TO EDUCATIONAL
SYSTEM
Now, let’s see what you think?
Decide
whether the
situations on
your sheet
are
PROTECTED BY
THE FIRST
AMENDMENT
*new PP