Freedom of Expression

I. Meaning of Free Speech: Original Intent

  1. No Prior Restraint (i.e., censorship before publication)
    1. confers the right to unrestricted discussion of public affairs
    2. does not exclude prosecution of seditious statements (i.e., statements inciting insurrection).
  2. Government can regulate or punish expression if:
    1. goal of advocacy is lawless action
    2. a high probability action will occur
    3. restrictions on means of communicatiON are reasonable even if restrictions discourage speech.

II. Freedom of Speech: Supreme Court Decisions

    Schenck v. U. S., 249 U.S. 46 (1919): Clear and Present Danger
    1. clear danger is one in which there is a direct relationship between the expression and the danger.
    2. present danger is one that occurs immediately.

    "The most stringent protection of free speech would not protect a [person] in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent." (Justice Oliver Wendell Holmes)
  1. Gitlow v. New York, 268 U.S. 652 (1925): bad tendency test
    1. prevents all speech which has a tendency to bring about acts which violate the law;
    2. these words imply urging to action.

  2. Yates v. U.S., 354 U.S. 298 (1957): clear and imminent danger
    1. advocacy that may ultimately lead to violent revolution is too remote from concrete action.
    2. essential distinction is that people must be urged to do something, now or in the near future, rather than merely to believe in something.
    3. clear danger is direct relationship between speech and action

  3. Brandenburg v. Ohio, 395 U.S. 444 (1969).
    1. advocacy of racial strife at a Ku Klux Klan rally.
    2. threatening speech is protected;
    3. government must prove incitment or imminent lawless action.

III. Obscene Speech

  1. Miller v. California, 415 U. S. 15 (1973).
    1. the work taken as a whole appeals toprurient interest;
    2. portrays sexual conduct in a patently offensive way;
    3. as a whole, the work lacks serious literary, or artistic merit;
    4. community standards govern first & second prongs.

IV. Symbolic Speech

  1. Tinker v. Des Moines Independent County School District, 393 U.S. 503 (1969).
    1. wearing black arm band in school is symbolic speech
    2. government must show substantial interference with appropriate school discipline.

  2. U.S. v. Eichman, 110. U.S. 2404 (1990).
    1. flag burning is symbolic speech
    2. ". . . the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."

  3. Cohen v. California, 403 U. S. 15 (1971).
    1. law prohibited "maliciously and willfully disturbing the peace and quite of any neighborhood or person [by] offensive conduct.
    2. expletive used, while provocative, was not directed at anyone in particular; no evidence that the words would provoke people in "substantial numbers" to take physical action".
    3. ". . . one man's vulgarity is another's lyric"
    4. two elements of speech protected:
      1. emotive--expression of emotion
      2. cognitive--expression of ideas.

  4. Terminiello v. Chicago, 337 U.S. 1 (1949).
    1. fighting words: speech that stirs people to anger is protected by the 1st amendment;
    2. "Freedom of speech, though not absolute. . . is protected against censorship or punishment, unless shown to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest." (Justice William O. Douglas)

V. Freedom of the Press

  1. Near v. Minnesota, 283 U. S. 697 (1931).
    1. no prior restraint
    2. "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any less necessary the immunity of the press from previous restraint in dealing with official misconduct." (Chief Justice Charles Evans Hughes)

  2. New York Times v. U. S., 403 U.S. 713 (1971).
    1. burden of proving immediate, inevitable, and irreparable harm would follow publication to justify prior restraint.
    2. prior restraint most often justified for national security.

VI. Freedom of Expression: Summary of Criteria

  1. no prior restraint (i.e., censorship before publication).

  2. means of expression may be regulated, but not the content.

  3. the law has a legitimate purpose (i.e., may prevent incitement, but not advocacy of ideas).

  4. expressions of both emotion and ideas are protected (including offensive and disagreeable conduct, as well as fighting words).