Freedom of Speech

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Freedom of Speech
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Types of Speech

• Pure Speech can be
• Calm
• Passionate
• Private
• Public
• Supreme Court has provided the strongest
  protection.

Supreme Court has provided the strongest
protection for pure speech.
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Types of Speech

• Symbolic Speech (can be Expressive Conduct)
• Actions
• Symbols
• May include words
• Limited if public safety is endangered.

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Types of Speech

• Examples of symbolic speech
• Flag burning
• Draft Card burning
• Black arm bands

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Freedom of Speech
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When can government limit or regulate expressive
conduct?

1. If the regulation is within the constitutional
   power of government.
2. If the government has a substantial interest
   unrelated to suppression of speech.
3. If there are ample alternative ways to
   communicate.

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Examples of acceptable limits on expressive speech

• Picketing in front of a private residence.
• Approaching people without consent to speak or
  offering literature to them within 100 feet of a
  health care facility (i.e., abortion clinic)
• An individuals Right to Privacy will triumph
  over your Freedom of Speech.

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Freedom of Speech
The Flag Burning Amendment never passed. Flag
burning is an acceptable form of expression.
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Regulating Speech

• Seditious speech is prohibited.
• Urging resistance to lawful authority
• Advocating overthrow of the government

Rebel NOW!
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Regulating Speech

• Clear and Present Danger Doctrine
• (in time of war, things may be different)
• When a nation is at war many things that might
  be said in time of peace will not be endured
• Justice Oliver Wendell Holmes, Jr. (1919)

1.
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Regulating Speech
2.

• Bad Tendency Doctrine
• Example Yelling Fire in a crowded theater.

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Regulating Speech
3.

• Preferred Position Doctrine
• (1st Amendment freedoms are more fundamental
  than other freedoms)
• The government must show that
• it is absolutely necessary to limit
• Freedom of Speech.

Primacy of Position
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Regulating Speech

• Sedition Laws
• Dennis v. United States (1951)
• Court upheld conviction of 11 communist party
  leaders who advocated revolution.

Middle of McCarthy's "Red Scare"
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Regulating Speech

• Sedition Laws
• Yates v. United States (1957)
• Court overturned convictions of several
  communist party leaders.
• Expressing an opinion that the government should
  be overthrown is different from urging people to
  take action.

"Red Scare" was over
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Regulating Speech

• Brandenburg v. Ohio (1969)
• Court ruled in favor of a Ku Klux Klan leader.

• While he advocated use of force in general, he
  did not urge immediate and concrete acts of
  violence against a specific target.

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Other Forms of Unprotected Speech

• Defamatory Speech
• False speech that damages a persons good name,
  character, or reputation.
• Slander Spoken
• Libel Written

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Other Forms of Unprotected Speech

• For slander and libel the key is
• Was the statement made with the
• knowledge that it was false?
• OR
• 2. Was the statement made with reckless disregard
  of whether it was false or not? (A newspaper
  must verify its sources.)

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Other Forms of Unprotected Speech

• NOTE For public officials or public figures
  (pastors, athletes, entertainers, etc.) the rules
  can be very different.
• These kinds of people thrive
• on public notice or notoriety.

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Other Forms of Unprotected Speech

• Fighting Words
• Offensive, derisive, annoying, etc.
• Words that by their very utterance inflict
  injury or tend to incite an immediate breach of
  the peace.

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Fighting Words
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Student Speech is Limited
Know this case!

• Tinker v. Des Moines School District (1969)
• Students do not give up
• their rights to free speech
• while in school. (Students won.)
• HOWEVER

Students were wearing black arm bands in
opposition to Vietnam War.
Mary Beth and John Tinker (sister 13, brother 15)
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Student Speech is Limited
Know this case!

• Bethel School District v. Fraser (1986)
• School districts may suspend students for lewd
  or indecent speech at school events, even though
  the same speech would be protected outside the
  school.
• School officials can decide what
• manner of speech is appropriate.

At a school assembly / election, student gave a
sexually suggestive campaign speech.
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Student Speech is Limited
Know this case!

• The Supreme Court says that schools have broad
  authority to regulate student speech in
  school-sponsored newspapers, theatrical
  productions, and other activities. These things
  are part of the curriculum, not an individuals
  personal expression of thought.

Hazelwood v. Kuhlmeier (1988)
Principal stopped publication of a student
newspaper with an article about abortion.
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Student Speech is Limited

• Therefore, the school could legally prohibit
• Productions of Hair or Equus (plays with
  nudity) or Whos Afraid of Virginia Wolf (foul
  language) or Rent (gay characters and drug
  use).
• School newspaper articles about abortion,
  politics, or religion (would probably offend
  somebody).
• Student speeches or acts with inappropriate
  language or topics (comedy club type routines).
• The school newspaper, plays, talent shows, etc.
  are intended to train students to work in those
  areas (i.e., part of the curriculum).

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Assignment

• Instead of Political Articles for next week - - -
• Write an analysis of the Supreme Courts
  positions on students speech rights. Quote from
  Tinker, Kuhlmeier, Fraser but dont just
  copy--paste. (Find Frasers speech, etc.)
• Must be Typed, single spaced, 12 point font
• Minimum of 2 full pages
• Cite your sources on a separate page at
  the end.
• Due Date Tuesday, October 13 (after 4 day break)
• Weight One test grade