Freedom of

EXPRESSION

Speech/Expression

that is ILLEGALILLEGALClear and Present Danger

LibelSlanderObscenity

LibelWritten statement that defames the

character of anotherMust prove the statement was falsePublic officials must also prove

“actual malice”

SlanderSpoken statement that defames the

character of anotherMust prove the statement was falsePublic officials must also prove

“actual malice”

Controversial Speech that is

LEGALLEGALSymbolic SpeechAction meant to convey a political

messageBurning a draft card - illegalBurning an American Flag - legal

Schenck v. US 1919Facts of the Case • During World War I, Schenck mailed circulars to draftees. The circulars

suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Question • Are Schenck's actions (words, expression) protected by the free speech

clause of the First Amendment?

• Decision: 9 for US, 0 for Schenck

• Clear and Present Danger Test

Gitlow v. New York 1925Facts of the Case • Gitlow, a socialist, was arrested for distributing copies of a "left-wing

manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

Question • Is the New York law punishing advocacy to overthrow the government by

force an unconstitutional violation of the free speech clause of the First Amendment?

• Decision: for Gitlow

• 14th Amend applies the 1st Amend to the States

Brandenburg v. Ohio 1969Facts of the Case 

• Brandenburg, a KKK leader, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Question 

• Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

• Decision:

8 for Brandenburg, 0 for Ohio

• Will speech incite lawless action

Tinker v. Des Moines 1969Facts of the Case • John Tinker, 15, his sister Mary Beth Tinker, 13, and Christopher Echardt, 16,

decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Fearing that the armbands would provoke disturbances, the school district resolved that all students wearing armbands be asked to remove them or face suspension. When the students wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day.

Question • Does a prohibition against the wearing of armbands in public school, as a form of

symbolic protest, violate the First Amendment's freedom of speech protections?

• Decision: 7 for Tinker, 2 for Des Moines

• Speech did not interfere with school discipline

New York Times v. US 1971Facts of the Case 

• In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security.

Question 

• Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

• Decision: 6 for NYT, 3 for the US

• Prior Restraint is unconstitutional

Miller v. California 1973Facts of the Case • 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. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.

Question • Is the sale and distribution of obscene materials by mail protected

under the First Amendment's freedom of speech guarantee?

• Decision: 5 for Miller, 4 for CA

• Obscenity is not protected, applying contemporary “community standards”, “lacks serious literary, artistic, political, or scientific value”

Hazelwood School District v. Kuhlmeier 1988

Facts of the Case • The Spectrum, the school-sponsored newspaper of Hazelwood East

HS, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.

Question • Did the principal's deletion of the articles violate the students' rights

under the First Amendment?

• Decision:

5 for Hazelwood, 3 for Kuhlmeier

• Schools can limit speech that is inconsistent with the shared values of social order

Texas v. Johnson 1989Facts of the Case • In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned

an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Question • Is the desecration of an American flag, by burning or otherwise, a

form of speech that is protected under the First Amendment?

• Decision: 5 for Johnson, 4 for Texas

• Expression of symbolic speech of a political nature

Can a school punish a student for making a

sexually suggestive political speech at a school rally?

Bethel School district v. Fraser, 1986

YES

Can a business owner use the mail to invite people to buy materials considered

obscene by postal workers?

Roth v. United States, 1951

NO

Can a CIA agent publish information about the

agency without the CIA’s permission?

Snepp v. United States, 1980

NO

Can a police officer wear long hair, in violation of

code, to protest the police dress code?

Kelley v. Johnson, 1976

NO

Take out a HALF Sheet of Paper

You Can Use the Notes You took today

Number it 1 thru 5

# 1

•According to Prior Restraint, when is the Press free from government censorship?

# 2

•In what way was Schenck, creating a Clear and Present Danger?

# 3

•What is the difference between LIBEL and SLANDER?

# 4

•Name ONE of the standards used to determine if an act or message is OBSCENE?

# 5

•What term is used to describe the type of speech that is meant to “convey a political message”?

Can a school punish students who wear black armbands to

protest a war?

Tinker v. Des Moines School District, 1969

NO

Can a school principal remove “inappropriate, personal, sensitive, and

unsuitable” content from a school newspaper?

Hazelwood School District v. Kuhlmeier, 1988

YES

Can Congress require cable companies to show sexually explicit material only during

late-night hours?

U.S. v. Playboy Entertainment Group, 2000

NO

Can a state prohibit newspaper advertising of

abortion services?

Bigelow v. Virginia, 1975

YES

Can the government prohibit casino advertising?

Greater New Orleans Broadcasting Association v.

United States, 1999

NO