Freedom of Speech and Press 1 st Amendment

Forms of (Speech) Expression Spoken Written Symbolic

Non-Protected Speech Libel: false and malicious use of printed words Slander: false and malicious use of spoken words Espionage, Sabotage, and Treason Sedition: crime of attempting to overthrow the government by force or to disrupt it’s lawful activities by violent acts Seditious Speech is the advocating, or urging of such conduct  Alien and Sedition Acts of 1798  Sedition Act of 1917  Smith Act of 1940

Non-Protected Speech Schenck v. United States (1919) Charles Schenck, member of Socialist Party, obstructing the war effort, 15,000 leaflets urging draftees to resist the call to military service Clear and Present Danger Rule “Words can be weapons…The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”

Non-Protected Speech Obscenity Pornography: movies, magazines, nude dancing Miller v. California (1973) Miller Test: 1. “the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest..” 2. “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law” 3. “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value…”

Obscenity Case Law Young v. American Mini Theaters (1976): A city can regulate the location of adult entertainment establishments City of Renton v. Playtimes Theaters Inc (1986): A city can bar the location of adult establishments within 1,000 feet of a residential zone, church, park, or school Sable Communications v. FCC (1989): Court struck down a federal law aimed at outlawing “dial-a-porn” services Osborne v. Ohio (1990): Court ruled that a state has a compelling interest to protect minors thus can make it a crime to posses, view, or make child pornography

Recent Obscenity Case Law United States v. American Library Association (2003): Court upheld federal law that requires libraries to block internet pornography (Children’s Internet Protection Act) Ashcroft v. Free Speech Coalition (2002): Virtual child pornography is protected by the 1 st Amendment because there is no “real” victim that needs to be protected. Struck down two overbroad provisions of the Child Pornography Prevention Act.

Non-Protected Speech United States v. O’Brien (1968): court upheld the conviction of 4 men who burned their draft cards in protest of the Vietnam War Virginia v. Black (2003): court upheld a state law that prohibits the burning of a cross as an act of intimidation

Prior Restraint The government may punish, after the fact, but with almost no exceptions, government cannot place any prior restraint on spoken or written words (no prior restraint) Exceptions: endangers national security

Prior Restraint Cases New York Times v. United States (1971): “Pentagon Papers” History of U.S. Decision Making Process on Vietnam Policy. No prior restraint, papers were published Snepp v. United States (1980): CIA rule that agents must agree never to publish anything about the agency without the CIA’s permission. Prior restraint allowed.

Free Speech Upheld Texas v. Johnson (1989): burning the American or state flag is symbolic speech protected by the 1 st Amendment “If there is a bedrock principle underlying the 1 st Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive…”

Tinker v. Des Moines School District (1969) In 1965, John Tinker, his sister Mary Beth, were sent home from school for wearing black armbands to protest the Vietnam War. The school had established a policy permitting students to wear several political symbols, but had excluded the wearing of armbands protesting the Vietnam War

Symbolic peaceful speech is protected by the 1 st Amendment “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gates” Tinker v. Des Moines School District (1969) Mary Beth Tinker (Today)

Morse v. Frederick (2007) In 2002, 18-year-old Joseph Frederick was suspended from the high school where he was a senior after he displayed a banner reading "BONG HITS 4 JESUS" across the street from the school in Juneau Alaska during the 2002 Olympic Torch Relay Joseph Frederick

5-4 decision, Court ruled in favor of the school “Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.” Based in part on the Clear and Present Danger Rule Morse v. Frederick (2007)