Essential Questions: How have courts defined (protected/denied) individual rights over time?

 The rights listed in the Constitution are not absolute – meaning that there are limits to our legal rights. If this was not the case, individuals may interfere with another person’s right to exercise their rights.  Courts often use a “balancing test” to weigh the benefit of one individual practicing his or her Constitutional rights, versus the safety of the general public. (Example: Yelling “FIRE!” in a crowded movie theater does not fall under an individual’s freedom of speech because it endangers the public safety.)  The rights listed in the Constitution protect citizens from actions by the government, not by private individuals.

 The First Amendment guarantees the right to express information and ideas in all forms of communication – speeches, books, art, newspapers, television, radio, and other media.  Crucial to maintaining our democratic society  Because we are free to express and exchange ideas with other citizens, especially with those who have opinions different than our own, our society is able to deal with change in a more orderly, stable way.  Unpopular ideas are protected.

 Speech is not limited only in what is said, but also when, where, and how it is said.  The government must protect our rights when we are on our own property as well as in a public forum.  Speech can be limited more easily in a private forum.  For example, if a business wants to prevent people from expressing themselves, they typically can.

 Our rights are not absolute  If our speech injures another person or their property, corrupts public morals, incites criminal activity, or advocates a specific action to overthrow the government by force – it is NOT protected by the First Amendment.

 Government is able to regulate free speech, because as stated previously, the right to free speech is not absolute, there are limits to our right.  Seditious Speech – speech advocating violence against the government – requires specific and immediate action  Obscenity – The government has the power to prohibit the distribution of obscene materials (anything that treats sex or nudity in an offensive or lewd manner; exceeds recognized standards of decency, and lacks serious literary, artistic, political, or scientific value).  Defamation – false expression about a person that damages that person’s reputation; not protected by the First Amendment (Slander – spoken; libel – written)

 Commercial Speech – Most advertising is considered commercial speech and is distinguished legally from individual speech. In general, courts allow the government to ban commercial speech that is false or misleading or that provides information about illegal products.  Fighting Words – words spoken face-to-face that are likely to cause an imminent breach of the peace between the speaker and the listener.  These are violations of the First Amendment because of society’s interest in maintaining order. Still, courts rarely use this “doctrine” today. Even offensive, provocative speech that makes its listeners very angry is generally protected under the First Amendment.  The courts have decided that police officers have to determine an audience’s response to “fighting words” and balance the responsibility of protecting the speaker’s right to freedom of speech with public safety.

 Prior to the 1950s, if an individual was making a speech that would lead to a “clear and present danger,” then the speaker could be arrested.  This means that their speech would lead to listener’s participating in dangers or illegal activity, even if those actions did not occur immediately.  Since the 1960s, the courts have been using something called the “incitement test” which can punish speakers only when they are encouraging immediate lawless action. Therefore, speakers have more “wiggle-room” and have more protections under the First Amendment.

 Hate Speech – views motivated by bigotry and racism. (Protected by 1 st )  People who argue that hate speech should be punished say that hate speech has strong emotional and psychological impacts on victims and communities.  They also argue that hate speech amounts to fighting words and therefore should not be protected by the First Amendment.

 Vagueness – Laws governing free speech must be very clear. If they are not, courts can strike them down as being too “vague”.  Example – the government could not pass a law preventing protesting in public; but they could pass a law that prevented protesting in a specific location during a certain time of day.

How have the courts defined our civil liberties concerning free expression over time?

 Constitutional Question: Can individuals use their freedom of expression to encourage others to protest the draft during wartime?  No – it creates a clear and present danger during wartime therefore the speech can be limited.

 Constitutional Question: Does a state law limiting a person’s free speech violate the Constitution if that person’s speech is meant to “inflict injury or cause an immediate breach of the peace”?  No, Chaplinsky used “fighting words” therefore his speech is not protected by the First Amendment.

 Constitutional Question: Can a state limit speech that encourages people to do illegal things?  No, unless the speech specifically incites violates, the speech is okay.  In this case, the court used a two-pronged test.  Was the speech… 1. Meant to incite or produce imminent lawless action? 2. Likely to produce such action?

 Constitutional Question: Can student speech/expression be limited in schools?  No, not if the speech is not disruptive to the school day.  The students in this case used symbolic speech, and they were not disruptive so it was fine.

 Constitutional Question: Can lewd/inappropriate student speech be limited in schools?  Yes – if the speech is obscene or inappropriate students can be disciplined and their right to free speech is limited.

 Constitutional Question: Can someone burn the American flag under freedom of expression?  Yes! If the individual is not posing a threat to public safety, they can burn the flag in protest.