Types of Speech
•
Pure Speech
–
Calm
–
Passionate
–
Private
–
Public
Supreme Court has provided the strongest protection.

Types of Speech
•
Symbolic Speech (Expressive Conduct)
–
Actions
–
Symbols
–
May include words
Limited if public safety is endangered.

Types of Speech
•
Examples of symbolic speech
–
Flag burning
–
Draft Card burning
–
Black arm bands

When can government limit or regulate expressive conduct?
1. If the regulation is within the constitutional power of government.
2. If the government has a substantial interest unrelated to suppression of speech.
3. If there are ample alternative ways to communicate.

Examples of acceptable limits on expressive speech
–
Picketing in front of a private residence.
–
Approaching people without consent to speak or offer literature within 100 feet of a health care facility
(i.e., abortion clinic)
An individual’s Right to Privacy will triumph over Freedom of Speech.

Regulating Speech
Seditious speech is prohibited .
–
Urging resistance to lawful authority
–
Advocating overthrow of the government

Regulating Speech
“
Clear and Present Danger
” Doctrine
(in time of war, things may be different)
“When a nation is at war many things that might be said in time of peace … will not be endured …”
Justice Oliver Wendell Holmes, Jr. (1919)

Regulating Speech
“
Bad Tendency
”
Doctrine
Example: Yelling
“Fire” in a crowded theater
.

Regulating Speech
“ Preferred Position ” Doctrine
(1 st Amendment freedoms are more fundamental than other freedoms)
The government must show that it is absolutely necessary to limit
Freedom of Speech.

Regulating Speech
Dennis v. United States (1951)
Court upheld conviction of 11 communist party leaders who advocated revolution.

Regulating Speech
Yates v. United States (1957)
Court overturned convictions of several communist party leaders.
Expressing an opinion that the government should be overthrown is different from urging people to take action.

Regulating Speech
Brandenburg v. Ohio (1969)
Court ruled in favor of a Ku Klux Klan leader.
While he advocated use of force, he did not urge immediate and concrete acts of violence.

Other Forms of
Unprotected Speech
False speech that damages a person’s good name, character, or reputation.
Slander
– Spoken
Libel
– Written

Other Forms of
Unprotected Speech
For slander and libel the key is:
1. Was the statement made with the knowledge that it was false?
2. Was the statement made with reckless disregard of whether it was false or not?

Other Forms of
Unprotected Speech
NOTE: For public officials (government, police officers, etc.) or public figures
(pastors, athletes, entertainers, etc.) the rules can be very different.

Other Forms of
Unprotected Speech
Offensive, derisive, annoying, etc.
Words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Fighting Words

Student Speech is Limited
Tinker v. Des Moines School District (1969)
Students do not give up their rights to free speech while in school.
(Students won.)
HOWEVER
…

Student Speech is Limited
Bethel School District v. Fraser (1986)
School districts may suspend students for lewd or indecent speech at school events, even though the same speech would be protected outside the school.
School officials can decide what manner of speech is appropriate.

Student Speech is Limited
The Supreme Court says that schools have broad authority to regulate student speech in school-sponsored newspapers, theatrical productions, and other activities. These things are “part of the curriculum,” not an individual’s personal expression of thought.
Hazelwood v. Kuhlmeier (1988)