THE FIRST AMENDMENT - SPEECH

Freedom of Expression – Are there limits on your free speech? Protected Speech – all speech is presumed to be protected by the First amendment The standard of review applied to all content-based regulation is Strict Scrutiny (Fundamental Right) However, there may be times where your speech is unprotected

Freedom of Expression Unprotected Speech Advocacy of Imminent Unlawful Conduct inciting a riot

Freedom of Expression ‘advocating a riot’ in the past had different standards Schenck v. US (1919) The Clear and Present Danger Test Socialist party’s printing of anti- draft leaflets Abrams v. US (1919) Bad Tendency Test Dennis v. US (1951) Clear and Probable Danger

Freedom of Expression Unprotected Speech Brandenberg v. Ohio (1969) Imminent Danger test Advocated racial strife during a televised KKK rally This test protects the advocacy of lawlessness except in unusual circumstances Today, your speech is not protected ONLY when it actually causes imminent danger

Freedom of Expression Unprotected Speech Fighting Words words with a direct tendency to cause acts of violence Gov’t’s interest in keeping peace outweighs free speech interest

Freedom of Expression Unprotected Speech Fighting Words Chaplinsky v. New Hampshire (1942 ) – Fighting words Chaplinsky called a cop a “Racketeer” and a “Fascist”

Freedom of Expression Unprotected Speech Obscenity – What’s obscene? Miller v. California (1973) Miller test – Does it appeal to a prurient interest? Does it lack literary, artistic, political, or scientific value? Does it violate Contemporary Community Standards?

Important Free Speech Cases Cohen v. California (1971) applies Brandenburg to Chaplinsky Cohen wore a coat with “Fuck the Draft” in large letters on the back to the courthouse Buckley v. Valeo (1976) Campaign expenditures are a form of free speech Texas v. Johnson (1989) Flag burning R.A.V. v. St. Paul (1992) Hate Speech – okay if no actual Lawlessness occurs Virginia v. Black (2003) Cross burning potentially OK

Freedom of Expression Defamation – Not Protected injury to reputation or privacy i. New York Times Test – public officials or figures may not recover damages for defamation unless the statement was made with actual malice ii. Media use of info – press can release the name of a rape victim inadvertently released by police

Freedom of Expression False Advertising - Not protected can prohibit advertising illegal conduct Partially protected Speech Commercial speech cigarette ads, hard liquor ads

Freedom of Expression Also Not Protected Disclosure of factual info (exposing CIA) Threats to high public officials Slander – false and malicious public statement Libel – false and malicious printed statement (However, almost impossible to prove actual malice)

Freedom of Expression – When can speech be restricted? There are times where speech can be taken away if it is for the betterment of the whole and is content neutral in how it is applied Content neutral means: No matter what the message says, no one can use free speech. Not because of the content, but other factors affecting the usage of that space. Content-neutral regulation aka: Time, Place, and Manner

Freedom of Expression Time, Place, and Manner Public Forum – usually unrestricted free speech allowed i.A type or kind of public property – sidewalks, streets, public parks, designated meeting held If the government is going to limit your speech it: Must be content neutral Narrowly tailored Significant gov’t interest (noise control, safety) Alternative channels available – can’t close off only channel for communication

Freedom of Expression Time, Place, and Manner Nonpublic Forum i.Most public property is NOT a public forum i. Schools – Not a public forum

Freedom of Expression Time, Place, and Manner Private Forum Right NOT to speak, private individuals can choose what speech to be associated with Hurley v. Irish American Gay, Lesbian, and bisexual group of Boston (1995) Boston St. Pat’s day Parade was ruled a private forum

Boy Scouts of America v. Dale James dale lost his appeal to the Supreme Court claiming he was discriminated against for being gay Court found Boy Scouts can choose who to associate with

Important Free Speech Cases Freedom of Expression in Schools W.V. state Bd. Of Ed. v. Barnette (1943) Jehovah’s Witnesses right NOT to salute the flag Tinker v. Des Moines (1969) The wearing of black armbands to protest the Vietnam War Students do NOT shed their right to the freedom of expression at the schoolhouse door Bethel School District no.403 v. Fraser (1986) Content of a speech at school can be controlled Morse v. Frederick (2007) Drug references are controllable by schools

"'I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be” Bethel v. Fraser speech in question