Congress shall make no
law respecting an
establishment of religion,
or prohibiting the free
exercise there of;. . .
. . . or abridging the
freedom of speech,. . .
. . . or of the press;. . .
. . . or the right of the
people to peaceably
assemble,. . .
. . . and to petition the
Government for a redress
of grievances.
Should Freedom of
Speech be limited
and regulated by
the Government??
Under what
circumstances and
why???
The Supreme Court says yes,
it must be limited. Taking into
to consideration:
•Unforeseen political
situations
•Social situations
•Introduction of new
technology
1.Absolute or the Literal Test –
This requires a literal reading
of the Constitution, giving the
1st Amendment absolute
power.
[No Supreme Court has ever
produced a majority opinion
upholding this standard]
2. Preferred Position Theory: This is the
understanding that not all freedoms are
equal; some are mosr important and more
basic than others. Freedom of Speech is
above and beyond all others. It is what
makes US Society so unique. It is the
cornerstone of US democracy. Under this
belief a strong burden of proof is required as
to why an individual’s Freedom of Speech
should be restricted.
3. Balancing Theory – 90% of the time
States fail to prove their burden of
proof and the individual tends to win.
However, this theory states that when a
case is balancing between society and
the individual it is difficult for the
individual to win. Society comes before
the individual.
4. Clear and Present Danger – This theory
asserts the importance of the protection of
society, and the protection of the country
from invasion or overthrow. Under this theory
the understanding is that it is necessary to
have laws that deal with attempts to
overthrow the government or threaten
national security. Under this belief, the
government has the right to limit speech if it
is related to what is causing the threat. [This
theory has even been taken further to Clear
and Probable, which requires less of a burden
of proof to limit speech and expression.]
5. Bad Tendency Theory: This theory is
no longer in use, however, it limited
freedom of speech in an attempt to
take care of a problem ahead of time.
This theory required very little proof on
the government’s part as to why a
person’s freedom should be limited.