Ap u.s. government & politics Friday, April 6, 2018

Warm-Up/HW Check All of the following statements reflect positions the Supreme Court has taken with regard to the right of free speech EXCEPT: a. A restriction on the right of free speech should always be viewed with skepticism. b. There are no acceptable governmental restrictions on free speech. c. Government has an obligation to try to ensure citizens the right to be heard. d. The right to free speech is a fundamental natural right. e. The First Amendment protects free speech from incursions of both the federal and state governments.

The freedom of speech ● How would you decide the case of the Socialists’ anti-draft literature? ● Schenck v. U.S. (1919)

What is “Speech”? Speech is: Spoken words Written words Symbols that intend to communicate a message that can be easily understood by a reasonable person Expressive conduct that communicates a message that can be easily understood by a reasonable person

Is this “Speech”? Is a protest or rally a form of speech? What if the speaker at the rally encourages people to immediately go out and violate the law (for example, by throwing bricks through the windows of the corporate headquarters of major banks)? Is the burning of an American flag a form of speech? Texas v. Johnson (1989) What about burning a draft card? U.S. v. O’Brien (1968) Is wearing a jacket with the words, “Fuck the Draft” a form of speech? Cohen v. California (1971) What about one person telling another person, “Fuck you.”?

Non-speech Obscenity Fighting Words Incitement to Illegal Activity Chaplinsky v. New Hampshire (1942) Incitement to Illegal Activity Schenck v. U.S. (1919) Gitlow v. New York (1925) Brandenburg v. Ohio (1969) Modern expansion of “incitement” Does a publisher have a right to print and sell a guide on how to be a hitman? 4th Circuit says No. What about a guide to building a nuclear bomb?

Why protect speech? Crucial to self-governance Speech helps people influence the government, choose candidates, influence other people, etc. This is the most traditional and sacred justification for freedom of speech Marketplace of ideas Allow people to discover “truth” on their own Advances autonomy Allows people to be themselves in a more complete sense

Prior restraint Definition: a statute, administrative scheme, or judicial order which prevents speech from occurring Prior restraint is not permissible in the U.S. (Then how can the government ban the publication of child pornography, for example?) The original understanding of Free Speech may have been limited to a ban on prior restraint The original understanding of Freedom of the Press was almost certainly confined to this

Content-based laws The core of the First Amendment is that government cannot discriminate against speech based on its content Government cannot pick and choose between ideas it likes and does not like Any content-based regulation of speech is presumptively invalid and must pass the STRICT SCRUTINY TEST Strict Scrutiny: Regulation in question must be “necessary to advance a compelling government interest” (Other “tests” of government regulation of conduct, etc.): Intermediate Scrutiny: Regulation must be “substantially related to an important government interest” Used for content-neutral regulations of speech Rational-basis Review: Regulation must be rationally related to a legitimate government interest

Permissible regulations of speech Content-Neutral Regulations Including laws against Libel and Slander Time, Place, and Manner Regulations Commercial Speech Some “Indecent” Speech

Time, Place, & Manner Government can regulate speech in a PUBLIC FORUM so as to minimize disruption of a public space while still protecting speech Classic example: Shouting “fire” in a crowded theater Another example: Permit requirement for marches/demonstrations Test: A form of Intermediate Scrutiny Example: Tinker v. DesMoines (1969): Des Moines School District thought that a couple of students who wanted to wear black armbands to protest the Vietnam war was too distracting and suspended them until they stopped wearing the armbands Is this a permissible Time, Place, and Manner regulation? But see: Morse v. Frederick (2007)

Commercial speech Commercial speech that can be prohibited: Ads for illegal activity False or misleading ads The rest: Speech encouraging business is usually protected Usually reviewed using some form of intermediate scrutiny

Indecent speech Also known as “low value speech” Examples: Nude Dancing—Viewed as symbolic speech; same Intermediate Scrutiny Test as Tinker Profanity—Generally protected, but with exceptions: Broadcast Media Schools: Bethel School District v. Fraser (1986)

Political expenditures Citizens United v. FEC (2010) Allows corporations and unions to contribute unlimited amounts to “independent expenditures” in support of candidates, parties, or issues Includes advertisements that call for the election or defeat of particular candidates As long as there is no coordination with the campaigns Speechnow.org v. FEC Used the Citizens United precedent to remove limits on “independent expenditure committees” These become “Super PACs”

Expressive association Boy Scouts of America v. Dale (2000) BSA removed James Dale as a scoutmaster when it was discovered that Dale was homosexual Dale sued, claiming a violation of New Jersey’s law banning discrimination in public accommodations Holding: The Boys Scouts’ (*a private organization) right of Expressive Association allows them to bar Dale from serving as a troop leader

Student SCOTUS: The Pledge of Allegiance In 1940, Minersville School District in Pennsylvania expelled the Gobitis children for refusing to participate in the Pledge of Allegiance salute. The Court rejected the Gobitis’ claim that the free exercise of their religion (Jehovah’s Witness) exempted them from participating in the salute Three years later, in the middle of World War II, a nearly identical case came before the Court The Barnette children, also Jehovah’s Witnesses, were expelled from school for refusing to participate in the flag salute, in violation of a policy of the West Virginia State Board of Education The Barnettes argue that the state policy violates their freedom of religion. How will your Supreme Court decide this case?

Homework Unit 6 Vocabulary You must use Index Cards or an Index Card-like App. Write each term on the front of the card; define it on the back of the card.

Current events discussion