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Freedom of Speech
What is Free Speech?
Incorporation
Gitlow v. N.Y. (1925): 14th Amendment’s “due process clause” protects citizens’ fundamental rights (like freedom of speech) from violations by state and local governments as well as by congress.
Amendment 1: “Congress shall make no law…”
Most, but not all, of the rights in the Bill of Rights have, one by one, been ruled to be “incorporated” by the due process clause. Most recently, the right to bear arms (McDonald v. Chicago, 2010)
3 Types of “Speech”
Pure Speech
Speech Plus
Most strongly Protected
Speech accompanied by actions such as marching, demonstrations, picketing, etc.
Subject to restriction that do not apply to pure speech
Symbolic SpeechUsing actions and symbols to express opinions
Court decisions most mixed: Burning draft cards not protected; burning the flag is. (Burning the Koran?)
Protected/Not Protected
“Clear and Present Danger” Test Schenck v. U.S. (1919): Speech can be
suppressed if there is an imminent threat to society, e.g. falsely shouting “fire!” in a crowded theater.
Bad Tendency Doctrine Gitlow v. N.Y. (1925): Speech can be limited when
it is likely to lead to something bad happening
Today, however, the preferred position doctrine, gives speech precedent over other values.
Protected/Not Protected (Cont.)
Prior Restraint
Definition: Blocking speech (or press) before it is given
Deemed unconstitutional by the Supreme Court (Pentagon Papers)
Not Protected
SeditionNot protected, but what is it?In the past, could be mere criticism of gov’t (Alien and
Sedition Act).
Smith Act (1940): Sedition=Advocacy of violent overthrow of the government
Recently, Supreme Court has narrowed definition further. Speech can be prohibited as seditious, only when…
There is an imminent danger of an actual overthrow, and
People are actually urged to do something, rather than merely believe something
Not Protected (Cont.)
Defamatory Speech
Definition: false speech that damages a persons reputation
“Slander” if spoken, “libel” if written.
“Fighting Word”
Definition: “[Words] that by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Not Protected (Cont.)
Obscenity
Not protected, but difficult to define
“I know it when I see it” –Justice Potter Stewart
Student Speech
Not protected when it disrupts education
• Tinker v. Des Moines School District (1969)• Bethel School District v. Fraser (1986)• Hazelwood School District v. Kuhlmeier (1988)