Freedom Of Speech

1
Freedom Of Speech

• Government Neutrality
• No Free Lunch

2
Why Allow Dissent?

• That whenever any Form of Government becomes
  destructive of these ends, it is the Right of the
  People to alter or to abolish it, and to
  institute new Government, laying its foundation
  on such principles and organizing its powers in
  such form, as to them shall seem most likely to
  effect their Safety and Happiness. Prudence,
  indeed, will dictate that Governments long
  established should not be changed for light and
  transient causes and accordingly all experience
  hath shewn that mankind are more disposed to
  suffer, while evils are sufferable than to right
  themselves by abolishing the forms to which they
  are accustomed. But when a long train of abuses
  and usurpations, pursuing invariably the same
  Object evinces a design to reduce them under
  absolute Despotism, it is their right, it is
  their duty, to throw off such Government, and to
  provide new Guards for their future security.

Thomas Jefferson said this in 1776 The
Declaration of Independence.
3
(No Transcript)
4
(No Transcript)
5
THE FIRST AMENDMENT

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

6
If you want to allow this . . .
7
You have to allow this . . .
8
And this . . .
9
If you want this . . .
10
And this . . .
11
You have to allow this . . .
12
Symbolic Speech

• Conduct is protected by the First Amendment, as
  Symbolic Speech if
• The conduct is intended to convey a particular
  message, AND
• It is likely that the message was understood by
  those who witnessed the conduct.

13
Obscenity

• Anything that treats sex in an offensive or lewd
  manner, exceeds recognized standards of decency,
  and lacks serious literary, artistic, political
  or scientific value.

14
Obscenity

• Courts ask three questions when deciding whether
  something is obscene
• Would the average person, applying contemporary
  community standards find that the material, taken
  as a whole, appeals to prurient interests.
• Does the work depict or describe, in a patently
  offensive way, sexual conduct specifically
  outlawed by state law?
• Does the work, taken as a whole, lack serious
  literary, artistic, political, or scientific
  value?

15
Obscene?
Who determines what has and what lacks serious
literary, artistic, political or social value?
16
Fighting Words

• Expression which, when addressed to an
  individual, in a face to face situation, are
  likely to cause an immediate breach of the peace.
• An invitation to exchange fisticuffs. Texas v.
  Johnson.

17
Hate Speech
Is the answer really more speech?
What can we do before more speech succeeds?
18
The same conduct does not always carry the same
message.
19
Are these two flag burners conveying the same
message?
20
Questions

• Is burning a flag as part of a flag retirement
  ceremony symbolic speech?
• Is it intended to convey a particular message?
• Is that message likely to be understood?
• Is burning a flag in protest symbolic speech?
• Is it intended to convey a particular message?
• Is that message likely to be understood?

21
We can imagine no more appropriate response to
burning a flag than waving one's own, no better
way to counter a flag burner's message than by
saluting the flag that burns, no surer means of
preserving the dignity even of the flag that
burned than by--as one witness here
did--according its remains a respectful burial.
We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the
freedom that this cherished emblem
represents. Justice Brennan, writing for the
Supreme Court in Texas v. Johnson.
22
(No Transcript)
23
Article V. (The Amendment Process) The Congress,
whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this
Constitution, or, on the Application of the
Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all
Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures
of three fourths of the several States, or by
Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed
by the Congress Provided that no Amendment which
may be made prior to the Year One thousand eight
hundred and eight shall in any Manner affect the
first and fourth Clauses in the Ninth Section of
the first Article and that no State, without its
Consent, shall be deprived of its equal Suffrage
in the Senate.
Proposed by two thirds of both houses of Congress.
Ratified by the legislatures of three fourth of
the several states.
24
Should there be a Constitutional amendment to
make it illegal to burn the American Flag, in
protest?