Freedom of Speech
"Without free speech no search for truth is
possible ... no discovery of truth is useful ...
Better a thousandfold abuse of free speech
than denial of free speech. The abuse dies
in a day, but the denial slays the life of the
people, and entombs the hope of the race.“
- Charles Bradlaugh
British social reformer (1833-1891)
“Congress shall make no law …
abridging the freedom of speech
…” –
The First Amendment
The Supreme Court has extended the meaning
of freedom of speech to include “symbolic
speech,” or the use of symbols, emblems, and
signs to communicate ideas.
Freedom of Speech
• Five Exceptions
– Clear and Present Danger
– Fighting Words
– Obscenity
– Sedition
– Slander
Freedom of Speech
• Clear and Present Danger
– Schenck v. United States, 1919
– Justice Oliver Wendell Holmes
• “The most stringent protection of free speech
would not protect a man falsely shouting fire in a
theatre and causing panic … The question in every
case is whether the words used are in such a nature
as to create a clear and present danger that they
will bring about the substantive evil that Congress
has the right to protect.”
Freedom of Speech
• Fighting Words
– 1942
– An utterance which provokes another to
anger but has little if any social value may be
considered “fighting words” and violates the
concept of free speech
Freedom of Speech
• Obscenity
– Violates the public sense of decency and is
unconstitutional. The Supreme Court has not,
however, been able to define the term with any
precision
– Defined by local standards
Freedom of Speech
• Sedition
– Advocating the violent overthrow of the
government is unconstitutional
Freedom of Speech
• Slander
– Exposing a person or group to contempt,
ridicule, or hatred and adversely affecting their
reputation
• NOT CONSIDERED SLANDER:
– The Truth
– Something said with consent of individual
– Accidental speech where no negligence or malice was
intended
– Speech of privileged speaker protected by immunity
» Member of Congress speaking to colleague
» Parent speaking to a child
Freedom of Speech
• DeJonge v. Oregon, 1937
– Dirk DeJonge was distributing Communist
propaganda and trying to organize meetings.
He advocated political and social change in
America. He was arrested for attempting to
overthrow the government, and his case
eventually made it to the US Supreme Court.
– How did the court rule?
– The court overturned the lower court ruling,
saying his speech presented no clear danger to
the government
Freedom of Speech
• US v. O’Brien, 1968
David Paul O'Brien and three companions burned their draft cards
on the steps of the South Boston Courthouse, in front of a crowd
that happened to include several FBI agents. After the four men
came under attack from some of the crowd, an FBI agent ushered
O'Brien inside the courthouse and advised him of his rights.
O'Brien proudly confessed to the agent and produced the charred
remains of the certificate. He was subsequently put on trial for
failing to carry his draft card, and destroying government property.
O'Brien argued that the Act was unconstitutional. He explained to
the jury that he burned the draft card publicly to persuade others to
oppose the war. O'Brien was convicted and sentenced to the
maximum of six years
– How did the court rule?
– The Supreme Court ruled in O’Brien’s favor and defined this as
“symbolic speech,” or speaking through actions or symbols.
Freedom of Speech
• Tinker vs. Des Moines School District, 1969
John F. Tinker (15 years old), John's younger sister
Mary Beth Tinker, (13) and their friend Christopher
Eckhardt (16) decided to wear black armbands in
protest of the Vietnam War and supporting the
Christmas Truce called for by Robert Kennedy. The
school board heard rumor of this and banned the
wearing of armbands to school. The three kids were
suspended from school for violating the policy. How did
the court rule?
– The Supreme Court ruled in favor of the Tinkers,
saying the armbands were protected “symbolic speech”
and did not disrupt the educational process at the
school
Freedom of Speech
• Wisconsin v. Ovadal, 2003
Ralph Ovadal is a conservative minister, and
had a group of church members protesting on a
state-owned nude beach. He and a nude
sunbather got into a verbal altercation, and he
started yelling the words “Jezebel,” “whore,”
and “harlot” at her. Police arrested him for
disturbing the peace, but he argued First
Amendment protection to free speech.
– The state court ruled against Rev. Ovadal
citing the Fighting Words Doctrine
Freedom of Speech
• Clay v. Minnesota, 1998
Nathan Webb Clay was arrested in May 1998
after he called a police officer responding to a
report of a fight a "white racist motherf----r."
Clay then told that officer and a second officer,
whom he also accused of racism, he hoped
their mothers would die. A state district court
convicted Clay of disorderly conduct.
On appeal, Clay argued his speech was
protected by the First Amendment.
– The state court ruled against Clay citing the
Fighting Words Doctrine
Freedom of Speech
• Bethel Schools v. Fraser, 1986
Matthew Fraser, a Washington high school senior,
gave a speech nominating classmate Jeff Kuhlman for
student body vice president. The speech before 600
students was filled with sexual innuendos, but not
obscenity, prompting disciplinary action from the
administration. “Jeff is a man who will go to the very
end - even the climax, for each and every one of you.
So please vote for Jeff Kuhlman ..." Fraser was
suspended two days and prohibited from speaking at
graduation.
Fraser argued his speech was protected by the First
Amendment, and did not cause a significant disruption
in the school
– The state court ruled against Fraser, saying schools
have the right to teach appropriate social behavior
• “The undoubted freedom to advocate unpopular
and controversial views in schools and
classrooms must be balanced against the
society’s countervailing interest in teaching
students the boundaries of socially appropriate
behavior. … Surely, it is a highly appropriate
function of public school education to prohibit
the use of vulgar and offensive terms in public
discourse. … The determination of what manner
of speech in the classroom or in school
assembly is inappropriate properly rests with the
school board.”
- Chief Justice Warren Burger
Freedom of Speech
"The ultimate test of a belief in free speech
should be whether it can be extended to
people you hate.“
- Justice Oliver Wendell Holmes