By Jake Chesney and Angele Dunne

The idea of Protected Speech  Protected speech is the idea that a citizen of a government is guaranteed the right to expressing their beliefs and ideas without the fear of unwarranted government restriction.  Freedom of speech has been around since its invention in ancient Greece, and has always had its limits and importance debated.

Protected Speech Cont.  The freedom of speech is one of the original core ideas that our country was founded on and was established in the first Amendment in the line "Congress shall make no law … abridging the freedom of speech."  The controversies over Protected speech don’t lie in it’s existence but lies in how “Speech” is defined.

Protected Speech Cont.  New technologies and ideas have made the Freedom of Speech one of the most used and ever changing rights in modern day America.

Schenck v. US Background  Schenck v US took place in 1919, a time of intense tension over Americas involvement in WWI and tension between the social classes.  To help quell public dissent over American involvement, congress passed the Espionage act of 1917 and the Sedition act of 1918, aimed at helping the good of the public by forcibly silencing public dissenters.

Schenck v. US Background cont.  One of the dissenters was Charles Schenck, the general secretary to the socialist party. Schenck circulated around 15,000 pamphlets urging poor draftees and soldiers to resist the draft.  Schenck was arrested and convicted on the charges the he was “causing and attempting to cause insubordination in the military and naval forces of the United States.”

Schenck v. US Background cont.  Schenck appealed his case and claimed that the Espionage act was unconstitutional and that he and his fellow dissenters were having their rights taken from them.  The US government claimed that the actions of the dissenters were endangering the nation by depriving it of needed draftees and causing harm by starting insubordination in the army.

Decision  The US supreme court decided in a 9 to 0 vote that Schenck’s conviction will be upheld and said that the espionage act was a reasonable limitation of rights during a time of war and crisis.

Reasons and Consequences  Written by Justice Holmes, the court said that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.” He went on to argue that if the speech creates a clear and present danger to other people, the government can restrict and prevent the “Substantive Evils” that will follow.

Reasons and Consequences Cont.  Based on this case, the government is allowed to stop any speech that will be of harm to the public. During times of war, the government is especially able to restrict the publics rights for the greater good.

Bradenburg v. Ohio  Bradenburg v Ohio took place in 1969, a period of time involving intense activism and much debate of the freedom of speech.  In the past 15 years, America had seen many public protests/rallies and public messages showing various ideas. These protests ranged from anti Vietnam war movements, civil rights, and Klu Klux Klan movements.

Bradenburg v. Ohio Background Cont.  Bradenburg was an active member of the Klu Klux Klan who made a speech during a KKK rally that was recorded on video.  He was arrested and convicted on an Ohio criminal syndicism law making the avocation of "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and the gathering of individuals advocating doctrines of a similar mindset illegal.

Bradenburg v. Ohio Background Cont.  Bradenburg appealed his case, claiming that the Ohio law violated the rights of free speech given to him in the first and fourteenth amendment.  Ohio claimed that the law was constitutional because it limited the speech of groups with criminal intent, which the public welfare.

Decision  The Supreme Court ruled 8 to 0 (Fortas had just resigned) that Bradenburg was in the right and the Ohio law was unconstitutional.

Reasons and Consequences  To decide the case, the court used two tests to see if the Ohio law was unconstitutional.  The first being whether the law “directed at inciting or producing imminent lawless action” and the second was whether the law was “likely to incite or produce such action.”

Reasons and Consequences Cont.  The court decided that the Ohio law indiscriminately banned various doctrines and teachings and did not got far enough to make sure that what they banned could actually incite lawless activity.

Reasons and Consequences Cont.  Because of this ruling, the Ohio criminal syndicalism act was taken out of Ohio legislation and stopped any other states from making similar laws  Laws made after this ruling required that the doctrine being examined must actually have the ability to cause illegal criminal activities

West Virginia State Board of Education v. Barnette  West Virginia State Board of Education V. Barnette took place in a school in West Virginia containing several Jehovah's Witnesses.  According to the beliefs of the Jehovah's Witnesses, they were not allowed to pray or pledge towards symbols.

West Virginia State Board of Education v. Barnette Cont.  Based on a court ruling in 1940, Minersville School District v. Gobitis, the school required it’s students to pledge allegiance to the flag. If someone refused to pledge, they would be expelled until they agree to pledge.  The Barnett's and their children refused to pledge allegiance to the flag and brought a lawsuit against the Board of Education claiming their First Amendment rights had been violated.

Decision  The court ruled in favor of the Barnett's in a 6-0 vote overturning Minersville School District v. Gobitis and forcing the Board of Education to amend it’s rules.

Reasons and Consequences Cont.  The court ruled that forced pledging to be against the basic ideas of our Constitution.  They said that "Compulsory unification of opinion” was a doomed idea that could not hold up in a court of law.  For the majority opinion, Justice Jackson said "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Reasons and Consequences Cont.  The decision of the court was a landmark action that helped define the freedom of speech in the First Amendment.  The decision also set a precedence of religious exemption from certain rules and regulations for followers of different creeds and beliefs.

Gitlow v. New York  Benjamin Gitlow was a member of the Socialist party. He published and distributed a pamphlet called “Left-Wing Manifesto”, which was about creating a new Socialist government in the US. He was arrested and charged for violating the New York Criminal Anarchy Law of  New York Criminal Anarchy Law of 1902 stated that it was illegal to attempt to overthrow the government. Since the pamphlet discussed a new form of government, the state of New York arrested him. They also charged him for being an “evil disposed and pernicious person.”

Gitlow v. New York Background Cont.  He was arrested in 1919, which was during start of the first red scare. During this time period, everyone was paranoid about communism, and people would go to great lengths to stop the spread.  During the first red scare people were afraid of anarchy. By handing out the pamphlets, others thought that Gitlow was an anarchist and a radical; therefore, he was arrested.

Gitlow v. New York Background Cont.  At his trial, Gitlow claimed that none of his pamphlets actually prompted actions and was not asking for the public to use “force”.  After appealing his case to the supreme court, Gitlow used the same defense and also claimed that the law was breaking his constitutional rights.  The state used a previous court case, Barron V. Baltimore, which made the first amendment only apply to the federal government and not states.

Decision  The Supreme Court voted seven to two upholding Gitlow’s conviction that he broke the New York law even though he did not create any action but he could have, and therefore, the New York law was reasonable and applied to Gitlow.  However, the court also ruled in favor of Gitlow by overturning Barron V. Baltimore.

Reasons and Consequences Cont.  The court decision overturned Barron V. Baltimore and created the new precedents of amendment rights applying to state laws.  From this case, the idea of a “clear and present danger” was better defined.  The case established that the First Amendment applied to all states.

Reasons and Consequences Cont.  Overall, the idea of Protected speech was expanded in this case.  During future red scares, this decision would be used to overturn many charges by various states.

Reference Page  dictionary.thefreedictionary.com/Protected+spe ech>.  court/cases/ar37.html>.  /1968/1968_492  /1922/1922_19  ?court=us&vol=268&invol=652