Freedom of Expression Are there limits on your free speech Protected Speech all speech is presumed to be protected by the First amendment The standard of review applied to all contentbased regulation is ID: 513542
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Slide1
The First Amendment - speechSlide2
Freedom of
Expression – Are there limits on your free speech?
Protected
Speech – all speech is presumed to be protected by the First amendmentThe standard of review applied to all content-based regulation is Strict Scrutiny (Fundamental Right)However, there may be times where your speech is unprotectedSlide3
Freedom of Expression
Unprotected Speech
Advocacy of Imminent Unlawful Conduct
• inciting a riotSlide4
Freedom of Expression
‘advocating a riot’ in the past had different standards
Schenck
v. US (1919) The Clear and Present Danger TestSocialist party’s printing of anti-draft leafletsAbrams v. US (1919)Bad Tendency TestDennis v. US (1951)
Clear and Probable DangerSlide5
Freedom of Expression
Unprotected
Speech
Brandenberg v. Ohio(1969) Imminent Danger testAdvocated racial strife during a televised KKK rallyThis test protects the advocacy of lawlessness except in unusual circumstancesToday, your speech is not protected ONLY when it actually causes imminent dangerSlide6
Freedom of Expression
Unprotected Speech
Fighting Words words with a direct tendency to cause acts of violence Gov’t’s interest in keeping peace outweighs free speech interestSlide7
Freedom of Expression
Unprotected Speech
Fighting Words
Chaplinsky v. New Hampshire (1942) – Fighting wordsChaplinsky called a cop a “Racketeer” and a “Fascist”Slide8
Freedom of Expression
Unprotected Speech
Obscenity – What’s obscene?
Miller v. California (1973)Miller test – • Does it appeal to a prurient interest?• Does it lack literary, artistic, political, or scientific value?• Does it violate Contemporary Community Standards?Slide9
Important Free Speech Cases
Cohen
v
. California (1971) applies Brandenburg to ChaplinskyCohen wore a coat with “Fuck the Draft” in large letters on the back to the courthouseBuckley v. Valeo (1976)Campaign expenditures are a form of free
speech
Texas
v
. Johnson
(1989)
Flag burning
R.A.V.
v
. St. Paul
(1992)
Hate
Speech – okay if no actual
Lawlessness occurs
Virginia v. Black
(2003)
Cross burning potentially
OKSlide10
Freedom of Expression
Defamation – Not Protected
injury to reputation or privacy
New York Times Test – public officials or figures may not recover damages for defamation unless the statement was made with actual maliceMedia use of info – press can release the name of a rape victim inadvertently released by policeSlide11
Freedom of Expression
False
Advertising -
Not protectedcan prohibit advertising illegal conductPartially protected Speech Commercial speechcigarette ads, hard liquor adsSlide12
Freedom of Expression
Also Not Protected
Disclosure of
factual info (exposing CIA)Threats to high public officialsSlander
– false and malicious
public statement
Libel
– false and malicious
printed
statement
(
However, almost impossible to prove actual malice) Slide13
Freedom of
Expression – When can speech be restricted?
There are times where speech can be taken away if it is for the betterment of the whole and is content neutral in how it is applied Content neutral means: No matter what the message says, no one can use free speech. Not because of the content, but other factors affecting the usage of that space. Content-neutral regulation aka: Time, Place, and Manner Slide14
Freedom of Expression
Time, Place, and
Manner
Public Forum – usually unrestricted free speech allowedA type or kind of public property – sidewalks, streets, public parks, designated meeting heldIf the government is going to limit your speech it:• Must be content neutral• Narrowly tailored•
Significant
gov’t interest (noise control, safety)
• Alternative channels available – can’t close off only channel for communicationSlide15
Freedom of Expression
Time, Place, and
Manner
Nonpublic ForumMost public property is NOT a public forum Schools – Not a public forum Slide16
Freedom of Expression
Time, Place, and Manner
Private Forum Right NOT to speak, private individuals can choose what speech to be associated withHurley v. Irish American Gay, Lesbian, and bisexual group of Boston (1995)Boston St. Pat’s day Parade
was ruled a private forum Slide17
Boy Scouts of America v. Dale
James dale lost his appeal to the Supreme Court claiming he was discriminated against for being gay
Court found Boy Scouts can choose who to associate with Slide18
Important Free Speech Cases
Freedom of Expression in Schools
W.V. state Bd. Of Ed.
v. Barnette (1943)Jehovah’s Witnesses right NOT to salute the flagTinker v. Des Moines (1969)
T
he wearing of black armbands to protest the Vietnam War
Students do NOT shed their right to the freedom of expression at the schoolhouse door
Bethel School District no.403 v. Fraser
(1986)
Content of a speech at school can be controlled
Morse v. Frederick
(2007
)
Drug references are controllable by schoolsSlide19
"'I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most . . . of all, his belief in you, the students of Bethel, is firm.
Jeff
Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he
succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be”Bethel v. Fraser speech in question