Introduction to First Amendment Law

The 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.”

What else it means Through the 14th Amendment, state and local governments must adhere to the 1st Amendment as well “Unprotected” speech: “fighting words” Threats Obscenities Libel/slander Perjury Hate speech Protected: “political speech” No viewpoint discrimination

Question 1: Falsely shouting “Fire!” in a crowded theater

Can the Government Punish? Classic example of unprotected speech Sort of like perjury Schenck v U.S. “The most stringent protection of free speech would not protect a man in falsely yelling ‘fire’ in a theater and causing a panic.” 249 U.S. 47 (1919)

Question 2: Wearing a shirt with an expletive

Can the Government Punish? A man was arrested in California during the Vietnam war for a similar shirt Cohen v. California “Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this four-letter expletive a criminal offense.” 402 U.S. 15 (1971)

Question 3: Burning the American flag

Can the Government Punish? Can the government make flag burning illegal? On multiple occasions, the Supreme Court has held that burning is protected speech U.S. v. Eichman (1990), Texas v. Johnson (1989) Government cannot ban an idea just because it is disagreeable

Question 4: Burning a cross

Can the Government Punish? Crosses burned in the yard of an African American family by white supremicists Virginia v. Black Supreme Court cannot ban all cross burning except when the motive is to intimidate (considered unprotected: a threat)

Question 5: Punishing on-campus speech

First Amendment Law and Students Courts view schools as a setting “with special government interests” Can regulate speech more closely Student suspended for assembly speech with “an elaborate, graphic, and explicit sexual metaphor.” Bethel School Dist. V. Fraser http://www.freedomforum.org/templates/document.asp?documentID=13701 Students can protest with arm bands in school Tinker v. Des Moines School Dist. (1969) General Test: Schools may ban “speech or action that intrudes upon the work of the schools.”

Question 6: Punishing off-campus speech

Question 7: Banning hate groups from holding rallies/demonstrations