Freedom Of Speech
Government Neutrality:
No Free Lunch
Why Allow Dissent?
“That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter
or to abolish it, and to institute new Government, laying its
foundation on such principles and organizing its powers in
such form, as to them shall seem most likely to effect their
Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for
light and transient causes; and accordingly all experience
hath shewn that mankind are more disposed to suffer, while
evils are sufferable than to right themselves by abolishing the
forms to which they are accustomed. But when a long train
of abuses and usurpations, pursuing invariably the same
Object evinces a design to reduce them under absolute
Despotism, it is their right, it is their duty, to throw off such
Government, and to provide new Guards for their future
security.”
Thomas Jefferson said this in
1776; The Declaration of
Independence.
THE FIRST AMENDMENT
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.
If you want to allow this . . .
You have to allow this . . .
And this . . .
If you want this . . .
And this . . .
You have to allow this . . .
Symbolic Speech

Conduct is protected by the First
Amendment, as “Symbolic Speech” if:


The conduct is intended to convey a particular
message, AND
It is likely that the message was understood
by those who witnessed the conduct.
Obscenity

Anything that treats sex in an offensive or
lewd manner, exceeds recognized
standards of decency, and lacks serious
literary, artistic, political or scientific value.
Obscenity

Courts ask three questions when deciding
whether something is “obscene”:



Would the average person, applying
contemporary community standards find that the
material, taken as a whole, appeals to prurient
interests.
Does the work depict or describe, in a patently
offensive way, sexual conduct specifically
outlawed by state law?
Does the work, taken as a whole, lack serious
literary, artistic, political, or scientific value?
Obscene?
Who determines what has and
what lacks “serious literary,
artistic, political or social
value?”
Fighting Words


Expression which, when addressed to an
individual, in a face to face situation, are
likely to cause an immediate breach of the
peace.
“An invitation to exchange fisticuffs.”
Texas v. Johnson.
Hate Speech
Is the answer really “more
speech”?
What can we do before
“more speech” succeeds?
The same conduct does not
always carry the same
message.
Are these two flag burners conveying the same
message?
Questions

Is burning a flag as part of a flag
retirement ceremony symbolic speech?



Is it intended to convey a particular message?
Is that message likely to be understood?
Is burning a flag in protest symbolic
speech?


Is it intended to convey a particular message?
Is that message likely to be understood?
“We can imagine no more appropriate
response to burning a flag than waving one's
own, no better way to counter a flag burner's
message than by saluting the flag that burns,
no surer means of preserving the dignity even
of the flag that burned than by--as one witness
here did--according its remains a respectful
burial. We do not consecrate the flag by
punishing its desecration, for in doing so we
dilute the freedom that this cherished emblem
represents.”
Justice Brennan, writing for the Supreme Court in Texas v. Johnson.
Article V. (The Amendment Process)
Proposed
bywhenever
two thirds
bothofhouses
of shall deem
The
Congress,
twoofthirds
both Houses
itCongress.
necessary, shall propose Amendments to this Constitution, or,
on the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all Intents and Purposes,
as Ratified
Part of this
when ratified
by the
Legislatures
byConstitution,
the legislatures
of three
fourth
of the of
three fourths of the several States, or by Conventions in three
several states.
fourths thereof, as the one or the other Mode of Ratification may
be proposed by the Congress; Provided that no Amendment
which may be made prior to the Year One thousand eight
hundred and eight shall in any Manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and that no
State, without its Consent, shall be deprived of its equal
Suffrage in the Senate.
Should there be a Constitutional
amendment to make it illegal to
burn the American Flag, in
protest?