Freedom
of
EXPRESSION
Speech/Expression
that is ILLEGAL
Clear and Present Danger
Libel
Slander
Obscenity
Libel
Written statement that
defames the character of
another
Must prove the statement was
false
Public officials must also
prove “actual malice”
Slander
Spoken statement that
defames the character of
another
Must prove the statement was
false
Public officials must also
prove “actual malice”
Controversial Speech that is
LEGAL
Symbolic Speech
Action meant to convey a political
message
Burning a draft card - illegal
Burning an American Flag - legal
Schenck v. US 1919
Facts of the Case
• During World War I, Schenck mailed circulars to draftees.
The circulars suggested that the draft was a monstrous
wrong motivated by the capitalist system. The circulars
urged "Do not submit to intimidation" but advised only
peaceful action such as petitioning to repeal the
Conscription Act. Schenck was charged with conspiracy to
violate the Espionage Act by attempting to cause
insubordination in the military and to obstruct recruitment.
Question
• Are Schenck's actions (words, expression) protected by the
free speech clause of the First Amendment?
• Decision: 9 for US, 0 for Schenck
• Clear and Present Danger Test
Gitlow v. New York 1925
Facts of the Case
• Gitlow, a socialist, was arrested for distributing copies of a "leftwing manifesto" that called for the establishment of socialism
through strikes and class action of any form. Gitlow was
convicted under a state law, which punished advocating the
overthrow of the government by force. At his trial, Gitlow
argued that since there was no resulting action flowing from the
manifesto's publication. The New York courts had decided that
anyone who advocated the doctrine of violent revolution violated
the law.
Question
• Is the New York law punishing advocacy to overthrow the
government by force an unconstitutional violation of the free
speech clause of the First Amendment?
• Decision: for Gitlow
• 14th Amend applies the 1st
Amend to the States
Brandenburg v. Ohio 1969
Facts of the Case
• Brandenburg, a KKK leader, made a speech at a Klan rally and
was later convicted under an Ohio criminal syndicalism law.
The law made illegal advocating "crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing
industrial or political reform," as well as assembling "with any
society, group, or assemblage of persons formed to teach or
advocate the doctrines of criminal syndicalism."
Question
• Did Ohio's criminal syndicalism law, prohibiting public speech
that advocates various illegal activities, violate Brandenburg's
right to free speech as protected by the First and Fourteenth
Amendments?
• Decision:
8 for Brandenburg, 0 for Ohio
• Will speech incite lawless action
Tinker v. Des Moines 1969
Facts of the Case
• John Tinker, 15, his sister Mary Beth Tinker, 13, and
Christopher Echardt, 16, decided along with their parents to
protest the Vietnam War by wearing black armbands to their Des
Moines schools during the Christmas holiday season. Fearing
that the armbands would provoke disturbances, the school
district resolved that all students wearing armbands be asked to
remove them or face suspension. When the students wore their
armbands to school, they were asked to remove them. When they
refused, they were suspended until after New Year's Day.
Question
• Does a prohibition against the wearing of armbands in public
school, as a form of symbolic protest, violate the First
Amendment's freedom of speech protections?
• Decision: 7 for Tinker, 2 for Des Moines
• Speech did not interfere with school
discipline
New York Times v. US 1971
Facts of the Case
• In what became known as the "Pentagon Papers Case," the
Nixon Administration attempted to prevent the New York
Times and Washington Post from publishing materials
belonging to a classified Defense Department study
regarding the history of United States activities in Vietnam.
The President argued that prior restraint was necessary to
protect national security.
Question
• Did the Nixon administration's efforts to prevent the
publication of what it termed "classified information"
violate the First Amendment?
• Decision: 6 for NYT, 3 for the US
• Prior Restraint is unconstitutional
Miller v. California 1973
Facts of the Case
• Miller, after conducting a mass mailing campaign to
advertise the sale of "adult" material, was convicted
of violating a California statute prohibiting the
distribution of obscene material. Some unwilling
recipients of Miller's brochures complained to the
police, initiating the legal proceedings.
Question
• Is the sale and distribution of obscene materials by
mail protected under the First Amendment's freedom
of speech guarantee?
• Decision: 5 for Miller, 4 for CA
• Obscenity is not protected, applying
contemporary “community standards”,
“lacks serious literary, artistic, political, or
scientific value”
Hazelwood School District v.
Kuhlmeier 1988
Facts of the Case
• The Spectrum, the school-sponsored newspaper of
Hazelwood East HS, was written and edited by students. In
May 1983, Robert E. Reynolds, the school principal, found
two of the articles in the issue to be inappropriate, and
ordered that the pages on which the articles appeared be
withheld from publication. Cathy Kuhlmeier and two other
former Hazelwood East students brought the case to court.
Question
• Did the principal's deletion of the articles violate the
students' rights under the First Amendment?
• Decision:
5 for Hazelwood, 3 for Kuhlmeier
• Schools can limit speech that is
inconsistent with the shared values of
social order
Texas v. Johnson 1989
Facts of the Case
• In 1984, in front of the Dallas City Hall, Gregory Lee
Johnson burned an American flag as a means of protest
against Reagan administration policies. Johnson was tried
and convicted under a Texas law outlawing flag desecration.
He was sentenced to one year in jail and assessed a $2,000
fine. After the Texas Court of Criminal Appeals reversed
the conviction, the case went to the Supreme Court.
Question
• Is the desecration of an American flag, by burning or
otherwise, a form of speech that is protected under the First
Amendment?
• Decision: 5 for Johnson, 4 for Texas
• Expression of symbolic speech of a
political nature
Can a school punish a
student for making a
sexually suggestive political
speech at a school rally?
Bethel School district v. Fraser,
1986
YES
Can a business owner use
the mail to invite people to
buy materials considered
obscene by postal workers?
Roth v. United States, 1951
NO
Can a CIA agent publish
information about the
agency without the CIA’s
permission?
Snepp v. United States, 1980
NO
Can a police officer wear
long hair, in violation of
code, to protest the police
dress code?
Kelley v. Johnson, 1976
NO
Take out a HALF Sheet
of Paper
You Can Use the
Notes You took today
Number it 1 thru 5
#1
• According to Prior
Restraint, when is the
Press free from
government
censorship?
#2
• In what way was
Schenck, creating a
Clear and Present
Danger?
#3
• What is the difference
between LIBEL and
SLANDER?
#4
• Name ONE of the
standards used to
determine if an act or
message is OBSCENE?
#5
• What term is used to
describe the type of
speech that is meant to
“convey a political
message”?
Can a school punish students
who wear black armbands to
protest a war?
Tinker v. Des Moines School
District, 1969
NO
Can a school principal
remove “inappropriate,
personal, sensitive, and
unsuitable” content from a
school newspaper?
Hazelwood School District v.
Kuhlmeier, 1988
YES
Can Congress require cable
companies to show sexually
explicit material only during
late-night hours?
U.S. v. Playboy Entertainment
Group, 2000
NO
Can a state prohibit
newspaper advertising of
abortion services?
Bigelow v. Virginia, 1975
YES
Can the government
prohibit casino advertising?
Greater New Orleans
Broadcasting Association v.
United States, 1999
NO