Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of;. . .

. . . or abridging the freedom of speech,. . .

. . . or of the press;. . .

. . . or the right of the people to peaceably assemble,. . .

. . . and to petition the Government for a redress of grievances.

Should Freedom of Speech be limited and regulated by the Government??

Under what circumstances and why???

The Supreme Court says yes, it The Supreme Court says yes, it must be limited. Taking into to must be limited. Taking into to consideration:consideration:

•Unforeseen political Unforeseen political situationssituations

•Social situationsSocial situations

•Introduction of new Introduction of new technologytechnology

1.1.Absolute or the Literal Test – This Absolute or the Literal Test – This requires a literal reading of the requires a literal reading of the Constitution, giving the 1Constitution, giving the 1stst Amendment absolute power.Amendment absolute power.

[No Supreme Court has ever [No Supreme Court has ever produced a majority opinion produced a majority opinion upholding this standard]upholding this standard]

2. Preferred Position Theory: This is the 2. Preferred Position Theory: This is the understanding that not all freedoms are equal; understanding that not all freedoms are equal; some are mosr important and more basic than some are mosr important and more basic than others. Freedom of Speech is above and beyond others. Freedom of Speech is above and beyond all others. It is what makes US Society so unique. all others. It is what makes US Society so unique. It is the cornerstone of US democracy. Under It is the cornerstone of US democracy. Under this belief a strong burden of proof is required as this belief a strong burden of proof is required as to why an individual’s Freedom of Speech should to why an individual’s Freedom of Speech should be restricted.be restricted.

3. Balancing Theory – 90% of the time 3. Balancing Theory – 90% of the time States fail to prove their burden of proof States fail to prove their burden of proof and the individual tends to win. However, and the individual tends to win. However, this theory states that when a case is this theory states that when a case is balancing between society and the balancing between society and the individual it is difficult for the individual to individual it is difficult for the individual to win. Society comes before the individual.win. Society comes before the individual.

4. Clear and Present Danger – This theory asserts 4. Clear and Present Danger – This theory asserts the importance of the protection of society, and the importance of the protection of society, and the protection of the country from invasion or the protection of the country from invasion or overthrow. Under this theory the understanding is overthrow. Under this theory the understanding is that it is necessary to have laws that deal with that it is necessary to have laws that deal with attempts to overthrow the government or attempts to overthrow the government or threaten national security. Under this belief, the threaten national security. Under this belief, the government has the right to limit speech if it is government has the right to limit speech if it is related to what is causing the threat. [This theory related to what is causing the threat. [This theory has even been taken further to Clear and has even been taken further to Clear and Probable, which requires less of a burden of proof Probable, which requires less of a burden of proof to limit speech and expression.]to limit speech and expression.]

5. Bad Tendency Theory: This theory is no 5. Bad Tendency Theory: This theory is no longer in use, however, it limited freedom longer in use, however, it limited freedom of speech in an attempt to take care of a of speech in an attempt to take care of a problem ahead of time. This theory problem ahead of time. This theory required very little proof on the required very little proof on the government’s part as to why a person’s government’s part as to why a person’s freedom should be limited.freedom should be limited.