Freedom of

speech
GUIDING QUESTION: HOW HAS THE FIRST AMENDMENT TO
THE U.S. CONSTITUTION BEEN INTERPRETED TO PROTECT
OUR FREEDOM OF SPEECH?
Standard
USG.5.4 Identify and describe the civil and
constitutional rights found in the United
States Constitution and Bill of Rights and
expanded by decisions of the United States
Supreme Court; analyze and evaluate
landmark cases of the United States
Supreme Court concerning civil rights
and liberties of individuals.

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1st Amendment USC
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 to peaceably
assemble, and to petition the
Government for a redress of
grievances.
1st Amendment Guarantees
The first amendment to the U.S. Constitution guarantees the right to express
information and ideas. It protects all forms of communication:
Speeches
Books
Arts
Newspapers
Telecommunications, and
Other media.
The first amendment exists to protect ideas that may be unpopular or different
from those of the majority.
It protects not only the person making the communication but also the person receiving
it.
The right to free speech is not absolute.
Note on Conflicts
Conflicts involving freedom of expression are among the most difficult ones
that courts are asked to resolve.
Obscenity
Obscenity: anything that treats sex or nudity inoffensive or lewd manner,
violates recognized standards of decency, and lacks serious literary, artistic,
political, or scientific value.
Roth v. US (1957)
Obscenity is not protected by the Constitution.
Roth Standard (very vague): weather to the average person, applying
contemporary community standards, the dominant theme of the material taken as a
whole appeals to the prurient or or or interest.
Miller v. California (1973)
Obscenity is obscenity if the average person applying community standards would
find it of prurient Interest.
Whether it offends the senses of the normal person
SLAP Test: Obscene material lacks scientific, literary, artistic, Or political value
First Amendment:
Obscenity
Roth v. US (1957) Revised by Miller
Facts: Roth encouraged people to buy his materials through the use of mailings and is arrested
Rule: Court rules that obscenity is not protected by the 1 st Amendment and disregard the Hicklin standard (Hicklin is derived from
English common law which stated: the tendency of the matter charged as obscenity is to deprave and corrupt those whose
minds are open to such immoral influences, and into whose hands a publication of this sort may fall problem is this is a child
standard)
Creates Roth standard: Whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to the prurient
interest very vague
1953 Jacob Ellis v. Ott- its a national standard
Miller v. CA (1973)- similar to Roth except includes videos, revises Roth to
what it is today
Rule: Obscenity is obscenity if the average person applying community standards
would find it of prurient interest
Whether it offends the senses of the normal person
Lacks SALP: scientific, literary, artistic, or political value

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First Amendment:
Obscenity
Other notable cases:
Jenkins v. GA (1974)- showed the movie Carnal Knowledge in movie theater
got in trouble SC ruled that 1st and 14th Amendment rights were violated GA
misapplied the Miller standard
Rule: something can have sex included and not be obscene
NY v. Ferber (1982)- Ferber owns a book store sells two movies to underage
police officers acting as minor boys Ferber argues his 1 st Amendment rights are
violated SC disagrees
Rule: states have an overwhelming (not just compelling) interest to protect
children

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Defamation
The First Amendment does not protect defamatory expression.
Defamation is a false expression about a person that damages that persons
reputation.
Spoken defamation = slander
Written definition = of libel
NYT v. Sullivan (1963)
Libel can only be established by evidence of Malice.
NYT v. US (1971)
Truth is an absolute defense to libel.
Commercial Speech
Speech for business purposes receives some protection but less than
personal and political speech.
Banned Commercial Speech:
False and/or misleading speech
Promoting illegal activities
Fighting Words, Offensive Speakers,
& Hostile audiences
Considerations: Speaker & Audience
Clear and Present Danger Test is applied when large groups are involved.
Incitement Test inciting riot or misbehavior
Not Protected:
Fighting Words abusive or threatening (a verbal slap)
Note however, that this is rarely applied and that even very offensive speech that angers is usually ok
Hate speech is protected (but subject to elevated scrutiny)
First Amendment Cases:
Speech
Schenck v. US (1919)
Facts: Schenck circulates literature stating that the draft is wrong.
Issue: Are the spoken/written words of an antiwar advocate protected by the 1 st
amendment during war time?
Rule: Court my limit free speech in time of war; establishes the clear and present
danger test
There are limits on liberties and rights

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First Amendment Cases:
Speech
Gitlow v. New York (1925)
Facts: Gitlow advocates socialism and overthrow of the U.S. Government. No
effect.
Issue: Whether the 1st and 14th amendments had influence on state laws.
Rule: Used what came to be known as selective incorporation doctrine in
which 1st Amendment rights could be incorporated through the 14th Amendment
due process.

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First Amendment Cases:
Speech
Tinker v. Des Moines (1969)
Facts: armband case
Issue: Does the 1st amendment protect symbolic student speech?
Rule: Yes;.Freedom of speech extends to students; Protects symbolic
speech
U.S. v. Eichman (1990)
Facts: Law passed to prohibit flag burning.
Issue: Can a law be passed prohibiting the burning of the U.S. Flag?
Rule: Flag Protection Act violates the 1st Amendment.
Even though flag burning may be disagreeable and offensive it is a freedom of speech
Note: United States Flag Code (4 USC Sec 8 Para (k) Amended 7 July 1976)
states: "The Flag, when it is in such condition that it is no longer a fitting
emblem of display, should be destroyed in a dignified way, preferably by
burning."
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First Amendment Cases:
Speech NYT v. Sullivan (1963)
Facts: AL law required proof of malice to establish Lible in ad.
Issue: Does a state law requiring proof of malice to establish
libel infringe on freedom of speech?
Rule: No. Have to prove there is intent of malice to establish
libel.
NYT v. US (1971)
Facts: Nixon Admin attempts to prevent publication of
Pentagon Papers (detailed critical account of US involvement
in Vietnam) by NYT.
Issue: Did the Nixon administration's efforts to prevent the
publication of what it termed "classified information" violate
the First Amendment?
Rule: No. The Court refused the halt publication of the
Pentagon Papers.
Reaffirmed the prior restraint doctrine established in Near v. Minnesota
Truth is an absolute defense against the charge of libel
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First Amendment Cases:
Speech
Hazelwood School District v. Kuhlmeier (1988)
Issue: Can schools censor student speech?
SC sided with the school district curtailing the freedom previously stated in Tinker precedent
Rule: Schools can censor speech when the speech is part of an educational activity
under reasonable educational justification.
As long as student produced material not affiliated with classroom activities, the rights to produce would
be protected

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First Amendment Cases:
Speech
Reno v. ACLU (1997)
Issue: Can states impose content-based blanket restriction of free speech (on
internet) to preserve morality?
Rule: Court repeals parts of the Communications Decency Act of 1996
Precedent: extends 1st Amendment rights to the internet

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Time, Place, Manner
Restrictions
Laws regulate expression in one of two ways.
1. Content these laws deal with what a speaker is allowed to say or not
say.
2. Time, place, manner these laws set forth when, where, and how
speeches allowed.
Typically government cannot regulate content of expression, except in
special situations.
Typically government can regulate time, place, and manner of
speech.
Public forums (parks, Streets, public facilities) are traditionally open to
expression unless regulation serves an important government
interest.
Private, or nonpublic, areas may be subject to reasonable restrictions.
.In both cases forums must be viewpoint neutral (they cannot promote any
particular point of view)
Symbolic Speech
Symbolic speech conduct that expresses an idea.
Sit in, flag-waving, demonstrations, wearing armbands, wearing protest buttons,
Etc.
In analyzing symbolic speech cases the court asks whether the speaker
intended to convey a particular message and whether it is likely that the
message was understood by those who viewed it.
To limit symbolic speech the government must show an important reason, or
governmental interest.
Vagueness & Over
Inclusiveness Laws
Laws governing free-speech must be clear and specific.
A reasonable person must be able to understand what expression is allowed
and what expression is prohibited.
Laws governing free-speech that are not clear and specific can be struck
down on the grounds of vagueness.
Laws that prohibit both protected and unprotected expression are termed
over inclusive.
Student Rights at School
Tinker v. Des Moines (1969) armbands case
Rule: Protection of symbolic freedom of speech for students at school
NJ v TLO (1985)
Rule: Replaces probable cause giving schools more freedom to conduct searches using reasonable
suspicion (rolling papers, etc.)
Bethel v. Fraser (1986)
Rule: Students do not enjoy the same freedoms and protections as adults
Santa Fe v. Doe (2000)
Rule: Student led prayer violates the Establishment Clause
Hazelwood v. Kuhlmeier (1988)
Rule: Freedom of school press at issue. Schools can regulate school-sponsored activities. Schools
need not tolerate student speech that is inconsistent with its basic educational mission
Safford v. Redding (2009) strip search case
Rule: Court limited the rights of a school to search students

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Homework
Please read and take notes on Text
Book Chapters 38 and 39.

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