DATE: APRIL 9, 2013

TOPIC: FREEDOM OF EXPRESSION

AIM: HOW IS THE FREEDOM OF EXPRESSION PRESENTED IN THE FIRST AMENDMENT?

DO NOW: INCORPORATION DOCTRINE – WHAT IS IT?

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.

THESE ARE FREEDOMS OF EXPRESSION – NOTICE THAT EXPRESSION HAS NOT BEEN SPECIFICALLY MENTIONED IN THE AMENDMENT.

SPECH AND NATIONAL SECURITY

• PRIOR RESTRAINT – CENSORSHIP – SAY IT WITH ME!

• Schenck v. United States (1919) – establishes the clear and present danger test on speech.

• Supreme Court has ruled continuously in favor of expression rights:

• a.) Calculated to incite – overthrow of government.

• b.) Would the speech cause imminent unlawful action.

• c.) Symbols are protected – they would have to cause direct harm – displaying the symbol is not enough.

WHY WOULD THE SUPREME COURT RULE THIS WAY?

FOUR FORMS OF SPEECH NOT GIVEN FULL PROTECTION.

• A.) Libel – writing that defames the character of another person.

• United States – you must show that the statement was false.

• Show statement made with actual malice – knowledge that the words were false.

• New York Times v. Sullivan (1964) – to libel a public figure there must be actual malice.

• b.) Obscenity – has no redeeming social value.

• What is obscene?

• Miller v. California (1973) – obscenity defined as prurient interests of an average person with materials that lack literary, artistic, political, or scientific value.

• c.) Symbolic Speech

• How can we define symbolic speech?

• Burning a draft card considered illegal – US can protect the draft cards.

• Not the flag – that can only be defined as speech and to limit that would be wrong.

• Texas v. Johnson (1989) – there may not be a law banning flag burning.

FOUR FORMS OF SPEECH NOT GIVEN FULL PROTECTION.

• d.) Corporate and Youthful Speech

• Where have we seen corporate speech protected already?

• Citizens United v. Federal Election Commission.

• Restriction to corporations placed on advertising alcohol and gambling.

• Young people may have less free speech than adults.

• Have we seen this before?

• Hazelwood School District v. Kuhlmeier (1988) – the principal could censor articles appearing in the school newspaper.

• Morse v. Frederick (2007) – the principal can limit the speech that promotes drug use.

FOUR FORMS OF SPEECH NOT GIVEN FULL PROTECTION.

BETHEL V FRASER - SPEECH GIVEN BY MATTHEW FRASER

• Matthew Fraser gave the following speech at a high school assembly in support of a candidate for student government office: "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."

TINKER V. DESMOINES (1968) – the wearing of black armbands did not violate the first amendment