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

2. 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.

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

4. 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

5. 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.”?

6. 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?

7. 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

8. 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

9. 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

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

11. 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)

12. 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

13. 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)

14. 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”

15. 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

16. 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?

17. 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.

18. Current events discussion