2. The government should not permit photos of sex acts on the Internet. % It should be against the law to falsely shout fire in a crowded theater. % It should be against the law to burn the flag.% The government should not permit photos of sex acts on the Internet if children are involved in the photos. % It should be against the law to advocate violence against gays. % It should be against the law to advocate the overthrow of the U.S. government. % A student who makes a racist speech on campus should be expelled. % The government should be able to stop the publication of a book which contains obvious lies about people. % Freedom of Speech Survey

3. FREEDOM OF SPEECH Congress Shall Make No Law….. Abridging the Freedom of Speech Congress Shall Make No Law….. Abridging the Freedom of Speech 1st Amendment Must Balance 1st Amendment Must Balance Will of majority Will of majority Rights of minorities Rights of minorities

4. FREEDOM OF SPEECH John Stuart Mill (On Liberty) John Stuart Mill (On Liberty) Liberty involves choices Liberty involves choices Choices require information Choices require information A need for a marketplace of ideas A need for a marketplace of ideas Speech is a check on tyranny Speech is a check on tyranny

5. THREE TOPICS Advocacy of Unpopular Ideas Advocacy of Unpopular Ideas Obscenity Obscenity Symbolic Speech Symbolic Speech

6. ADVOCACY OF UNPOPULAR IDEAS Sedition Act (1798-1801) Sedition Act (1798-1801) WWI--Sedition Act (1918) WWI--Sedition Act (1918) “disloyal, profane, scurrilous, or abusive language against govt.” “disloyal, profane, scurrilous, or abusive language against govt.” Upheld by Court: “Clear and present danger” test Upheld by Court: “Clear and present danger” test

7. ADVOCACY OF UNPOPULAR IDEAS Cold War (1950s) Cold War (1950s) Concerns about communism Concerns about communism McCarthy Hearings McCarthy Hearings Vietnam protests text Vietnam protests text text Today Today Test: “Imminent lawless action” Test: “Imminent lawless action” UNTIL THIS MOMENT, SENATOR, I THINK I NEVER REALLY GAUGED YOUR CRUELTY OR YOUR RECKLESSNESS. LET US NOT ASSASSINATE THIS LAD FURTHER, SENATOR. YOU HAVE DONE ENOUGH. HAVE YOU NO SENSE OF DECENCY, SIR? HAVE YOU NO SENSE OF DECENCY?

8. OBSCENITY Prohibited prior to Constitution Prohibited prior to Constitution Balance Balance Sensitivity of some Sensitivity of some Free expression of others Free expression of others Problem is definition Problem is definition

9. OBSCENITY Courts--obscene if : Courts--obscene if : Appeals to prurient interest in sex Appeals to prurient interest in sex Shows sexual conduct in an offensive way Shows sexual conduct in an offensive way No literary, artistic, political, or scientific value No literary, artistic, political, or scientific value Local values count Local values count

10. Exceptions Exceptions Involvement of children Involvement of children Right to specify locations Right to specify locations Depends on opportunity to avoid Depends on opportunity to avoid No prior restraint No prior restraint OBSCENITY (cont)

11. SYMBOLIC SPEECH Symbols are substitutes for speech Symbols are substitutes for speech Desecration of the flag Desecration of the flag USU’s Professor Chisholm USU’s Professor Chisholm Greg Johnson case (1984) Greg Johnson case (1984) Court: “Can’t prohibit an idea because it is offensive” Court: “Can’t prohibit an idea because it is offensive”

12. SYMBOLIC SPEECH Congressional Action (1989) Congressional Action (1989) Court: “Punishing desecration dilutes the freedom that makes the emblem meaningful” Court: “Punishing desecration dilutes the freedom that makes the emblem meaningful” Proposed Constitutional amendment Proposed Constitutional amendment Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within 7 years after the date of its submission for ratification: Article--The Congress shall have power to prohibit the physical desecration of the flag of the United States. Article--The Congress shall have power to prohibit the physical desecration of the flag of the United States.