Freedom of Speech

What is Free Speech?

Incorporation

Gitlow v. N.Y. (1925): 14th Amendment’s “due process clause” protects citizens’ fundamental rights (like freedom of speech) from violations by state and local governments as well as by congress.

Amendment 1: “Congress shall make no law…”

Most, but not all, of the rights in the Bill of Rights have, one by one, been ruled to be “incorporated” by the due process clause. Most recently, the right to bear arms (McDonald v. Chicago, 2010)

3 Types of “Speech”

Pure Speech

Speech PlusMost strongly Protected

Speech accompanied by actions such as marching, demonstrations, picketing, etc.

Subject to restriction that do not apply to pure speech

Symbolic SpeechUsing actions and symbols to express opinions Court decisions most mixed: Burning draft cards not protected;

burning the flag is. (Burning the Koran?)

Protected/Not Protected

“Clear and Present Danger” Test Schenck v. U.S. (1919): Speech can be suppressed

if there is an imminent threat to society, e.g. falsely shouting “fire!” in a crowded theater.

Bad Tendency Doctrine Gitlow v. N.Y. (1925): Speech can be limited when

it is likely to lead to something bad happening

Today, however, the preferred position doctrine, gives speech precedent over other values.

Protected/Not Protected (Cont.)

Prior Restraint

Definition: Blocking speech (or press) before it is given

Deemed unconstitutional by the Supreme Court (Pentagon Papers)

Not Protected

SeditionNot protected, but what is it?In the past, could be mere criticism of gov’t (Alien and

Sedition Act).Smith Act (1940): Sedition=Advocacy of violent overthrow

of the governmentRecently, Supreme Court has narrowed definition further.

Speech can be prohibited as seditious, only when…

There is an imminent danger of an actual overthrow, and

People are actually urged to do something, rather than merely believe something

Not Protected (Cont.)

Defamatory SpeechDefinition: false speech that damages a persons reputation

“Slander” if spoken, “libel” if written.

“Fighting Word” Definition: “[Words] that by their very utterance inflict

injury or tend to incite an immediate breach of the peace.”

Not Protected (Cont.)

ObscenityNot protected, but difficult to define“I know it when I see it” –Justice Potter Stewart

Student SpeechNot protected when it disrupts education• Tinker v. Des Moines School District (1969)• Bethel School District v. Fraser (1986)• Hazelwood School District v. Kuhlmeier (1988)