Freedom of Speech

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.”

Free speech lies at the heart of our democracy

Allows us to: Express opinions Disagree with government without fear of retaliation

Also protects right to right to hear controversial or alternate opinions

Types of Speech

Pure Speech Expression of an opinion before a willing audience

Occurs in private homes or with peers Government control is extremely rare

Speech Plus Speech accompanied with demonstrations and parades

Can be regulated HOW?

You can protest with signs and speeches, but cannot: Block sidewalks Harass people Endanger pedestrians

Symbolic Speech Nonverbal communication through use of symbols

Yellow ribbons – used to support our troops, but it is also a symbol for MIA/POW Red ribbons – AIDs awareness

Some symbolic speech is protected, some isn’t

United States v. O’Brien, 1968 Cannot burn draft cards to protest war

Tinker v. Des Moines, 1969 Can wear black armband to protest war

Texas v. Johnson, 1989 Can burn the American Flag in protest

Tests of Free Speech

Clear & Present Danger Schenck v. United States, 1919

Schenck urged men to resist draft

Supreme Court ruled: Urging people to resist draft posed “clear and present danger that. . . Will bring about. . . Evils that Congress has the right to prevent.”

Classic Example; Cannot yell “FIRE!!” in a crowded room

Tendency Gitlow v. New York, 1925

Gitlow was circulating anti-government literature This is restricted because it had “tendency” to lead to illegal action

Balancing Court must balance rights of the individual to freely express their opinions against need to maintain order and tranquility

Incitement Speech is prohibited only when it is intended to incite or actually produce immediate lawlessness

In short….. Government power to regulate what people say is limited

Regulations can be placed on time, place, manner of speech

Cities can require permits for protests

Government cannot favor some ideas or groups over others – no matter how unpopular

Some speech is not protected at all Unprotected Speech Some speech is not protected at all

Defamatory Speech If a statement damages another person’s reputation or influences others not to associate with them

Must be untrue with intent to do harm & actual harm must occur Two types 1. Libel – printed 2. Slander – spoken Publish a lie, knowing it’s a lie, with intent to do harm Can lead to actual malice

Fighting Words Attempts to provoke a fight

Chaplinsky v. New Hampshire, 1942 Words “having a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed

Seditious Speech Speech that advocates overthrowing the government or resisting lawful authorities

Restricted because it relates directly to national security

1798 – Alien & Sedition Act Crime to say false or malicious statements against the government with intent to do it harm So many people oppose it – it’s done away with

1917 – Espionage Act4 Crime to write or say anything negative about the government

1940 – Smith Act Outlawed teaching of or advocating to forceful overthrow of the government or joining a group with that goal

Dennis v. United States, 1951 Upheld convictions of several Communist Party leaders

Yates v. United States, 1957 Smith Act can only be applied to those who teach or advocate an action, not a belief