1. Free Speech and Free Press
Freedom of Expression
Free Speech and Free Press

2. Expression
Freedoms of speech and press are the most invoked of our freedoms.
We have:
The right to say what we want to
The right to hear what others have to say
The right to criticize our government without reprisal

3. No Prior Restraint
Prior restraint – stopping what is said before it is said = censorship
Prior restraint is have something approved or a permit issued.

4. Pentagon Papers New York Times v. United States 1971
Pentagon Paper was a history of the Vietnam War
Illegally obtained from a former Pentagon employee
Government did not wanted them published – claiming national security interest
Newspaper argued the public had a right to know and the press had a right to inform.
SCOTUS ruled they could be published
Affirmed the no-prior restraint doctrine

5. Protection of Symbolic Speech
No all expression is in words or in writing!
Symbolic speech:
Clothing, gestures, movements, nonverbal expressive conduct

6. Tinker v. Des Moines School District
1969
SCOTUS ruled that wearing an arm band to protest the Vietnam War by high school students was a form a speech protected by the First Amendment

7. Tinker v. Des Moines School District
Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?
The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school.

8. Flag Burning Texas v. Johnson
Laws prohibiting the burning of the American flag as part of a peaceful protest – unconstitutional.
Flag Protection Act of 1989 – passed by Congress
Ruled unconstitutional too
Elected officials have called for amending the Constitution to ban flag burning.

9. Cross Burning SCOTUS ruled that states can ban cross burning
Only when intended to intimidate!
States have a right to ban threats of violence
State must prove intimidation
Clarence Thomas, “cross burnings should be automatic evidence of intent to intimidate”

10. Commercial Speech Advertising It must be true and accurate
False advertising is not protected free speech

11. Attempts to Ban Subversive or Advocacy Speech
Several Doctrines regarding language subversive to the public order:
Clear and Present Danger
Bad Tendency Rule
Imminent Lawless Action Test

12. Clear and Present Danger
Schenck v. United States 1919
Socialist violated the Espionage Act by distributing a leaflet opposing the military draft
SCOTUS ruled leaflet created a clear and present danger to the public order.
Clear and Present Danger test:
Expression may be restricted if evidence exists that such expression would cause a dangerous condition that Congress has the power to prevent.

13. The Bad Tendency Rule
Speech may be curtailed if there is a possibility that such expression might lead to some ‘evil’.
Gitlow v. New York 1925
Applied the First Amendment to the states for the first time
Gitlow went to prison for advocating the violent overthrow of the government.
State had a right to prevent evils brought on by Gitlow’s speech.

14. Imminent Lawless Action Test
Brandenburg v. Ohio 1969
Ku Klux Klan leader made a speech advocating violence to achieve political goals – violated Ohio law
SCOTUS ruling:
Law violated Klan leaders freedom of speech
Advocacy speech can be limited if:
(1) it is "directed at inciting or producing imminent lawless action"
(2) it is "likely to incite or produce such action.

15. Obscenity
Most states make it a crime to disseminate ‘obscene material’
What is obscene?
“I know it when I see it” – Justice Potter Stewart
Miller v California 1973
Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material
SCOTUS ruled obscene material not protected free speech

16. Obscenity Test
The average person finds it violates contemporary community standards
The work taken as a whole appeals to the prurient interest in sex
The work shows offensive sexual content
The work lacks serious redeeming literary, artistic, political, or scientific merit.
Obscene defined by local standards!

17. Protecting Children
Laws outlawing the possession of child pornography allowable –
Purchasing such material promotes the exploitation of children
Child Protection Act of 1984 – made it a crime to receive through the mail sexually explicit depictions of children.

18. Internet Porn Question – how to protect children from exposure to it?
Communications Decency Act 1996 –
Made it a crime to provide children access to sexual material
SCOTUS ruled it unconstitutional restrained free speech
Child Online Protection Act 1998 –
SCOTUS ruled it did violate free speech and blocked implementation
Children Internet Protection Act 2000 –
Allowed public libraries and schools to install filters on computers to block ‘adult’ content

19. Unprotected Speech You can’t say anything about someone:
Defamation of Character – to wrongfully hurt a person’s good reputation.
Libel – making wrongful or misleading statements in writing
Slander – making wrongful or misleading statements in public to people other than the defamed party

20. Student Speech
In the school context, the United States Supreme Court has identified three major relevant considerations:
The extent to which the student speech in question poses a substantial threat of disruption (Tinker v. Des Moines )
Whether the speech is offensive to prevailing community standards (Bethel School District v. Fraser).
Whether the speech, if allowed as part of a school activity or function, would be contrary to the basic educational mission of the school (Hazelwood v. Kuhlmeier).

21. Right to Assemble/Petition the Government
Government can’t deny people the right to assemble on PUBLIC property.
Can regulate – where, when, and how.
Cannot regulate what can be said!

22. Research these cases Summary Paragraph on the following:
Texas v Johnson
Miller v California
Tinker v Des Moines School District
Bethel School District v. Fraser
Hazelwood v. Kuhlmeier
Brandenburg v. Ohio
New York Times v. United States