Congress shall make no law abridging the free

speech thereof…

Historical background: Speech• In 16th c.

(1500s) England• a subject Henry

VIII you would be sent to prison for saying, “I like not the proceedings of this realm.”

• Earlier times, the sentence would be harsher - death for treason.

Sedition Act of 1798

• “The urging of resistance to lawful authority or rebellion against the government.”

• A crime to write, print, or say “any false, scandalous, and malicious” statements against the gov’t and its officials.

Espionage Act of 1917• WWI - Nat'l gov’t

limiting speech during war time

• Suppress criticism of war, Congress passed the E.A.

• “A crime to interfere with the recruiting of soldiers or the draft. Willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of gov’t in US”

• 2,000 people convicted

Regulating Speech • Clear and Present Danger

Test• Schenck v. United States

1919• Chief Just Oliver Holmes

stated, , “speech is limited when a clear and present danger exists.”

• Schenck printed leaflets urging people to obstruct the war effort in WWI

• During wartime free speech can be limited

•

Protected (legal) Speech• 1) PURE SPEECH

• A) verbal expression ofof thought and opinion before an audience that has chosen to listen.

• B) Most common form of speech.

• C) One’s home or in front of an audience.

2) Speech Plus

Speech involving actions such as marching or demonstrating

Speech Plus

3) Symbolic Speech• A.k.a. - Expressive

conduct– involves using

actions and symbols to express opinions.

– Percey’s War Art demonstration from their house.

– Tinker vs. Des Moines 1969

Symbolic Speech– Symbolic

speech involves actions, the Court can put restrictions that do not apply to pure speech. •Gov’t has

ruled that blocking sidewalks or traffic, trespassing or endangers public safety.

When is Symbolic Speech Protected?

• You will examine six scenarios (all true) about the legality of Symbolic Speech.

• You can work in small groups (no more than 3)

• Read each scenario AND refer back to the front page of the information to determine if that action is correct or not.

• YOU MUST JUSTIFY YOUR ANSWERS!

Is the ACTION a form of Constitutionally protected “symbolic speech”?

• 1) YES! / 1940• Law prohibiting

picketing (striking) was INVALID b/c it did not inherently pose a “clear & present danger.”

• 2) NO! / 1968• Law justified b/c it

furthered an important gov’t interest.

• So NO to burning draft cards!

Is the ACTION a form of Constitutionally protected “symbolic speech”?

• 3) YES! / 1974• Overturned

conviction…why? • 1) flag privately

owned• 2) private property• 3) no risk “breach of

peace” (incitement to riot / disorderly conduct.

• 4) future interpretation if the factors do not apply.

• 4) NO! 2008 • Upheld ban • School officials could

reasonably predict the images would “substantially and materially disrupt the school environment”

Is the ACTION a form of Constitutionally protected “symbolic speech”?

• 5) NO 1984• Gov’t can restrict

time, place, manner of demonstrations

• Upkeep of the parks• Other ways for the

group to express their message.

• 6) YES! 1977 • States could NOT

require people to use these license plates.

• “individuals to hold a p.o.v. different from the majority and to refuse to foster…an idea they find morally objectionable.”

Censorship of Speech

Flag Burning - Constitutional Expression or Symbolic Speech?

• 1976 - Sutherland v. Illinois - Supreme Court ruled that burning the American flag was not symbolic speech.

• 1989 - Texas v. Johnson

Texas v. Johnson ’89-Right to burn the American flag-

• While the Republican National Convention was taking place in Dallas in 1984, Gregory Johnson participated in a political demonstration. Demonstrators marched through Dallas streets, stopping at several locations to stage “die-ins” intended to dramatize their opposition to nuclear weapons. One demonstrator took an American flag from a flagpole and gave it to Johnson.

• The demonstration ended in front of the Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, protesters chanted, “America, the red, white, and blue, we spit on you.” There were no injuries or threats of injury during the demonstration.

•

• Of the 100 demonstrators, only Johnson was arrested. He was charged under a Texas criminal statute that prohibited desecration [meaning “deface, damage, or otherwise physically mistreat in any way”] of a venerated object (including monuments, places of worship or burial, or a state or national flag) “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” (Texas Penal Code 42.09)

• At Johnson’s trial, several witnesses testified that they had been seriously offended by the flag burning. He was convicted, sentenced to one year in jail, and fined $2,000. The case was appealed to the U.S. Supreme Court.

Texas v. Johnson ‘89• 5 - 4 decision, • ruled that Johnson’s

burning of a flag was protected expression under the First Amendment.

• The Court said Johnson’s actions were really political expression. It does not matter if an audience takes offense to the ideas expressed by Johnson. The Court said that “[If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Flag Desecration in America

• STATE LAWS:• California: a misdemeanor for anyone to cast

contempt on any flag by mutilating, defacing, defiling, burning or trampling it.

• [Cal. Mil. & Vet. Code Ann. 614]• Texas: Class A misdemeanor who

intentionally damage, deface, mutilate or burn the United States flag or Texas state flag.

• [Texas Code Ann. Sec. 42.11]

• Supreme Court twice has invalidated state flag laws, 47 states still have on book laws, modeled after the Uniform Flag Law of 1917 that prohibits the desecration of the flag or its use for advertising and publicity purposes.

Three Forms of Speech NOT Protected

• Defamatory SpeechDoesn’t protect false speech that damages a

person’s good name, character, or reputation.

– Slander: spoken statements that damage a person’s reputation.

– Slander is expressed verbally, it’s not a criminal offense like libel. This really makes slander hard to prove, because not only do you have to show that the statement was made, but you also have to show that damage was done.

Defamatory Speech•Libel: written statements that

damage a person’s reputation. – The tricky thing about libel is that it

includes symbols, drawings, or the written word.

– So, those pictures you drew of your teacher with the head of a pig were technically libelous.

What is Defamation of Character?

Defamation includes four main points: – 1) The comment must be a false

statement.– 2) The comment is understood to be

intended against another person, business, or product.

– 3) The comment is verbalized or written to at least one other person.

– 4) The comment is understood as damaging to a person, business, or product.

Fighting WordsCourt ruled that words that are so insulting that they provoke immediate violence do not constitute free speech

• Lewd (crude/offensive usually in a sexual way)

• Obscene (statement that offends others) • Profane (Marked by contempt or irreverence

for what is sacred)• libelous• Insulting (To treat with gross insensitivity,

insolence, or contemptuous rudeness.)

• “fighting” words – those which causeInjury or tend to incite breach of peace

Freedom of Speech at School? Bethel School District v. Fraser 1986

• Ruling: Though the US Ninth Circuit Court of Appeals ruled in favor of Fraser, the Supreme Court reversed this decision with a 7-2 ruling in favor of the Bethel School District.

• “The First Amendment dose not prevent the school officials from determining that to permit vulgar and lewd speech such as (Fraser’s) would undermine the school’s basic educational mission.”

• Precedent: Bethel v. Fraser determined that it is legal for schools to censor obscene, lewd, vulgar and plainly offensive speech.

Hazelwood S.C. v.s. Kuhlmeier ‘88

• This case involves a student-run high school newspaper.

• The issue is whether a principal has the authority to censor (edit) the content of the articles IF they feel it is inappropriate for their students.

• Let’s find out!

Hazelwood Decision

• In a 5 – 3 decision (one judge abstained from voting)

• Ruled “ A school need not tolerate student speech that is inconsistent with its “basic educational mission.”

• “Even though gov’t could NOT censor similar speech outside of school.”