Introduction to First Amendment Law
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.”
What else it means
 Through the 14th Amendment, state and local governments
must adhere to the 1st Amendment as well
 “Unprotected” speech:
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“fighting words”
Threats
Obscenities
Libel/slander
Perjury
Hate speech
 Protected: “political speech”
 No viewpoint discrimination
Question 1: Falsely shouting “Fire!” in a
crowded theater
Can the Government Punish?
 Classic example of unprotected speech
 Sort of like perjury
 Schenck v U.S.
 “The most stringent protection of free speech would not protect
a man in falsely yelling ‘fire’ in a theater and causing a panic.”
249 U.S. 47 (1919)
Question 2: Wearing a shirt with an
expletive
Can the Government Punish?
 A man was arrested in California during the Vietnam war for
a similar shirt
 Cohen v. California
 “Absent a more particularized and compelling reason for its
actions, the State may not, consistently with the First and
Fourteenth Amendments, make the simple public display here
involved of this four-letter expletive a criminal offense.” 402
U.S. 15 (1971)
Question 3: Burning the American flag
Can the Government Punish?
 Can the government make flag burning illegal?
 On multiple occasions, the Supreme Court has held that
burning is protected speech
 U.S. v. Eichman (1990),Texas v. Johnson (1989)
 Government cannot ban an idea just because it is disagreeable
Question 4: Burning a cross
Can the Government Punish?
 Crosses burned in the yard of an African American family by
white supremicists
 Virginia v. Black
 Supreme Court cannot ban all cross burning except when the
motive is to intimidate (considered unprotected: a threat)
Question 5: Punishing on-campus
speech
First Amendment Law and Students
 Courts view schools as a setting “with special government
interests”
 Can regulate speech more closely
 Student suspended for assembly speech with “an elaborate,
graphic, and explicit sexual metaphor.” Bethel School Dist.V.
Fraser
 http://www.freedomforum.org/templates/document.asp?documentID=13701
 Students can protest with arm bands in school
 Tinker v. Des Moines School Dist. (1969)
 General Test: Schools may ban “speech or action that
intrudes upon the work of the schools.”
Question 6: Punishing off-campus
speech
Question 7: Banning hate groups from
holding rallies/demonstrations