1ST AMENDMENT: SPEECH
NON PROTECTED SPEECH
The Court holds that all speech is protected unless it falls into one of the 4 narrow categories:
1.Libel and slander (libel=written, slander=spoken)
2.Obscenity and pornography (lacks value, patently offensive)
3.Commercial speech (more restricted)
4.Fighting words (creates danger or violence)
The Court holds that all speech is protected unless it falls into one of the 4 narrow categories:
1.Libel and slander (libel=written, slander=spoken)
2.Obscenity and pornography (lacks value, patently offensive)
3.Commercial speech (more restricted)
4.Fighting words (creates danger or violence)
Schenck v. United States (1919)
Issue: Did Schenck’s conviction under the Espionage Act for criticizing the draft violate his 1st Amendment free speech rights? Majority: ◦unanimous opinion (Holmes) in favor of the US ◦the 1st Amendment may prevent Congress from stopping speech or punishing it ◦however in this circumstance (WWI), stopping or punishing speech that could endanger/disrupt the military was valid ◦Holmes: free speech NOT absolute ◦“clear and present danger” ◦Shouting fire in a crowded theater |
PROTECTED SPEECH
Prior restraint
◦Blocking speech before it is given, deemed unconstitutional ◦New York Times v. U.S. |
Symbolic speech
◦Tinker v. Des Moines (1969) -armbands ◦Texas v. Johnson (1989) – flag burning |
New York Times v. U.S. (1971)
PRIOR RESTRAINT Issue: Did the Gov’ts efforts to prevent 2 newspapers from publishing classified information given to them by a gov’t leaker violate the 1st Amendment (press)? Majority: The Court ruled, 6-3, for the NYT, per curiam opinion, all 9 weighed in ◦Per Curiam: reaffirmed that “prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” The Gov’t thus carries a heavy burden of showing justification for the imposition of such a restraint.” The per curiam opinion concluded that “the Gov’t had not met that burden”. |
TINKER V. DES MOINES (1969)
SYMBOLIC SPEECH Issue: Does a prohibition against the wearing of armbands in public school, as a form of symbolic speech, violate the students’ freedom of speech protections (1st Amendment)? ◦ Majority: ◦students retain their right to speech while in school ◦ wearing the armbands was a form of speech “neither students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate....” ◦schools CAN limit speech in cases where there would be a disruption to discipline or education ◦no evidence that the armbands would interfere with educational process or other students’ rights. |
CONTROVERSIAL AREAS (PRESS)
◦Executive Privilege
◦Right of presidents to withhold information from the courts. , U.S. v. Nixon (1974)
◦Shield laws – Protect reporters from having to reveal their sources.
◦Freedom of Information Act
◦Student Press
◦Hazelwood v. Kuhlmeier (1988), High school newspaper could not be restricted like other activities
◦FCC :regulates radio & tv, broadcast have less freedom than print
◦Right of presidents to withhold information from the courts. , U.S. v. Nixon (1974)
◦Shield laws – Protect reporters from having to reveal their sources.
◦Freedom of Information Act
◦Student Press
◦Hazelwood v. Kuhlmeier (1988), High school newspaper could not be restricted like other activities
◦FCC :regulates radio & tv, broadcast have less freedom than print
FREEDOM OF ASSEMBLY
◦Gov’t may not specify what said
◦ Gov’t can make reasonable time, place, & manner regulations
◦Police can order groups to disperse (public order)
◦Courts are therefore reluctant to impose prior restraint.
◦extent to which gov’t may limit access depends on the kind of forums involved:
◦Civil disobedience is not a protected right
◦ Gov’t can make reasonable time, place, & manner regulations
◦Police can order groups to disperse (public order)
◦Courts are therefore reluctant to impose prior restraint.
◦extent to which gov’t may limit access depends on the kind of forums involved:
◦Civil disobedience is not a protected right