Freedom of Expression Midterm

First Amendment: What does it cover?

This fundamental right covers freedom of speech, religion, assembly, and the right to petition the government. This amendment protects people from government retaliation or interference

Where does our body of law originate from?

The body of law in the United States primarily originates from the English Common Law System, which was adopted by the 13 colonies and was further developed and altered through the Constitution

What is a precedent?

An action or decision in a court case that later serves as an example or helps a judge decide a future case on the same issue

What is formal equality?

The systems and procedures of law apply equally to everyone

Examples of Cases that could be heard in Federal Court

• A Missouri newspaper challenges a state statute, claiming that it violates the newspaper’s rights under the First Amendment of the U.S. Constitution. 

• A university student challenges a new federal law that will increase interest rates on student loans. 

• A business in Iowa sues a former employee now living in Missouri for breaching a contract

What is the difference between administrative and statutory law?

Administrative law is rule-making by governmental agencies, while statutory law is written by legislatures

What is the main source of law in countries with legal systems based on Civil Law?

Statutes and Codes

Criminal law cases involve defendants' cases against

the state

The appellate courts immediately below the U.S. Supreme Court are often referred to as

Circuit Courts

In Ali v. Playgirl, Muhammad Ali relied on the law of equity to get what type of relief against Playgirl magazine?

Injunctive Relief

Which of the following is the best definition for the doctrine of stare decisis?

Past court decisions should stand, allowing precedent to comprise the law of the land

The U.S. Supreme Court hears about what proportion of cases appealed to it from lower courts?

less than 1%

In the United States, lawsuits between two private parties is under the purview of

Civil Law

Marketplace of Ideas Theory

Promotes that everyone shares their ideas freely, and in the competition of ideas, the ‘best’ idea rises to the top (reaches the people they need to reach - be a success)

Self Government Theory

• The means by which democracy functions 

• Relatively narrow scope - only applied to democracy and government ideas (leaves our other important ideas)

Individual Autonomy Theory

Holds that free speech is an important part of individual liberty

Dissent Theory

The value of having a dissenting opinion is that it allows people to disagree

Tolerance Theory

The purpose of exceptional protections for freedom of expression is to push society’s boundary on accepting the value of extreme speech in public discourse.

Three Levels of Scrutiny

1. Strict Scrutiny (highest level)

2. intermediate Scrutiny

3. Rational Basis Review

Strict Scrutiny

A form of judicial review that courts use to determine the constitutionality of certain laws. Often used by courts when a plaintiff sues the government for discrimination. It is the Highest Standard of Review that a court will use to evaluate the constitutionality of governmental discrimination

Intermediate Scrutiny

This is the test courts often use in the field of Constitutional Law to determine a statute’s constitutionality. It is only invoked when a state or the federal government passes a statute that discriminates against, negatively affects, or creates some kind of classification affecting certain protected classes. Was created due to Craig v. Boren, which applied it to a statute that discriminated on the basis of gender

Rational Basis Review

The standard used by courts to evaluate whether a law or government action is constitutional, particularly when it involves economic regulations or special policies that do not affect fundamental rights or suspect classifications. Under this standard, the Burden of Proof is on the person who is challenging the law to prove that the law is irrational or unreasonable. Usually these do not go through and the law will generally be upheld barring a clear or legit reason

Symbolic Speech

Includes gestures, clothing, flags, or other forms of expression that convey a particular message. Like wearing a T-shirt with a political slogan or burning a flag as a protest (both are considered to be symbolic speech)

Symbolic Speech Test

1. Is the law within the constitutional power of the government?

2. Does the law further a substantial or important government interest?

3. Is the interest unrelated to the suppression of free expression?

4. Is this regulation the least restrictive means with regard to free speech?

Hate Speech

Is protected under freedom of speech laws. This is specific language attacking someone based on race, color, religion, ethnicity, or sexual orientation

What types of speech are NOT protected?

1. The threat of violence, fighting words, and inciting a riot 

2. True threats of violence 

3. Harmful speech like Libel and Slander 

4. Obscene or vulgar speech 

5. Child Pornography 

6. Threats towards POTUS

Which of the following best describes the legacy of the collection of Supreme Court cases from 1919?

The Supreme Court heard cases involving First Amendment challenges for the first time

Which of the following statements best describes Marketplace of Ideas Theory?

The purpose of exceptional protections for freedom of expression is to help society find truth through rational deliberation and processing of all ideas

Which of the following statements best reflects the Individual Autonomy theory of the First Amendment?

What matters most is that protecting freedom of expression allows individuals to maximize their human potential, regardless of any social effect freedom of expression has.

Which of the following statements best describes Self-Governance Theory?

The ultimate value of the First Amendment is that every idea worth hearing should be heard and public participation in expression should be maximized

The Proud Boys hold a rally in a public park in your hometown. According to reasoning from traditional First Amendment theory, why does the First Amendment protect their right to do so?

• The only way for society to collectively decide what is true is to allow all kinds of speech to compete in a marketplace of ideas. 

• Allowing such hate groups to speak in public ensures that these groups don't manifest their hate through planning violent acts in secret. 

• Allowing such hate groups to speak in public means that authorities can monitor their activities.

Criticism of the Marketplace of Ideas Theory (Bunker Reading)

• The theory depends upon human reason, and human reason can be flawed 

• Truth is something that only happens in the long run, and in the long run "we're all dead"

To pass the strict scrutiny test, the state must show what?

A compelling interest, and that is narrowly tailored to serve that interest, and that it is the least restrictive means possible (used in Brandenburg v. Ohio - The Court applied strict scrutiny to determine that speech could only be restricted if it incited imminent lawless action)

According to the lecture, how did the California appeals court rule when it came to the constitutionality of car honking?

• Car honking is protected symbolic speech 

• The California regulation is legal because it passes the intermediate scrutiny test, meaning the state has an important and related interest in regulating traffic noise

What is the reasoning or justification for protecting Hate Speech?

The viewpoints we hate must be as protected as the viewpoints we like

What is a public forum?

A government-owned property that is open to the public for expressive activities, such as speech, assembly, and protesting. The designation of a public forum is significant because it determines the level of First Amendment protections afforded to speech in that designated space

How many types of public forums are there?

there are 3 types of public forums;

1. Traditional or Quintessential Public Forums

2. Limited Public Forums

3. Non-Public Forums

Traditional Public Forums

Restricted ability to suppress Time, Place, and Manner restrictions. Must be content and viewpoint neutral

Limited Public Forums

1. Time, Place, and Manner

2.  “Compelling Interest”

3. Can discriminate based on content, but not the viewpoint 

Non-Public Forums

prisons, government offices, hospitals. Never really been considered Public, but can be used in place of a public forum. Can be regulated - allowable commercial speech. Not based on disliking a speaker's view (republican or democrat)

What is the difference between a traditional public forum and a designated public forum?

Traditional public forums exist as “self-evident” forums, whereas the government must explicitly communicate when it is creating (or taking away) a designated public forum & Traditional public forums tend to include public streets and parks, while designated public forums tend to include public university buildings and municipal auditoriums.

Example of a Viewpoint Discrimination

An Iowa City ordinance prohibiting pro-ISU speech but allowing pro-Iowa speech 

An example of a time, place, or manner regulation on speech

Criminalizing setting any fires within city limits, which includes flag burning

Heckler’s Veto

Occurs when the speaker is silenced due to a disruptive or hostile audience reaction. This is often used in the context of free speech and the First Amendment. It violates the First Amendment of the speaker and the audience as they have a right to listen without issue

Terminiello v. Chicago (1949) 

• speech cannot be restricted just because it stirs anger or provokes the opposition

• Arrested a controversial former Catholic priest under a breach of the peace ordinance due to his inciting a hostile audience amounted to an unconstitutional Heckler’s Veto. The court held that the “breach of peace” ordinance unconstitutionally infringed upon the freedom of speech

Feiner v. New York (1951)

• authorities can intervene if speech causes an immediate public disturbance

• Court upheld Feiner’s arrest, saying the arrest was a valid exercise of “the interest of the community in maintaining peace and order on its streets”

• Arresting unpopular speakers is generally not okay unless they cause a “clear and present” danger in the streets

Brown v. Louisiana (1996)

• Silent protest in a public space (public library) can be protected as long as the protest does not interfere with the space’s primary function

• 5 African American men went into a library and asked for a book, and then were told to leave. They sat down and silently refused to leave. The Supreme Court said a public library may be a public forum as long as it doesn’t interfere with the basic function of a public library

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)

• The Supreme Court established that the First Amendment free speech rights of private groups to define the parameters of their expressive conduct during a parade trumped the provisions of a state anti-discrimination law

  • Cannot force a group to adopt certain messages

Incitement

Refers to speech that is meant to provoke or encourage others to engage in illegal or violent actions. The legal standard for this was established in the SCOTUS Case Bradenburg v. Ohio, which refined the definition of what constitutes unprotected speech 

Which of the following statements is TRUE about the nature of incitement?

speech must lead to imminent lawless action to be considered unprotected incitement

Schenck vs. United States (1919)

• Established the Clear and Present Danger Test - speech can be restricted if it presents a clear and immediate threat to national security (urging draft resistance during wartime)

Abrams v. United States (1919)

Affirmed the Clear and Present Danger Test - found a man guilty for enticing sedition by distributing pamphlets that encouraged factory employees to strike at the end of WW2. The Supreme Court said that pamphlet speech presents a clear danger to the United States

Gitlow vs. New York (1925)

Established the Incorporation Doctrine—the First Amendment applies to state laws through the Fourteenth Amendment, allowing states to restrict speech that poses a clear and present danger

Whitney v. California (1927)

• Upheld restrictions on speech advocating violent government overthrow but introduced a concurrence arguing that free speech should only be restricted in cases of immediate, serious danger, laying the groundwork for later rulings

Dennis vs. United States (1951)

• Developed the Balancing Doctrine - speech advocating government overthrow can be restricted if the government’s interest in preventing harm outweighs free speech protections 

Brandenburg v. Ohio (1969)

Speech that does not call for illegal action is protected, and even speech that does call for illegal action is protected if the action is not “imminent” or there is reason to believe that the listeners will not take action

Brandenburg Test

• Two-pronged test: 

  • Speech can be prohibited if it is “directed at inciting or producing imminent lawless action”

  • AND if it is “likely to incite or produce such action”

Fighting Words

Provoking someone to the point of hurting you. Typically, personal insults or offensive language aimed at an individual or a specific group. Meant to incite a violent response from the listener

Chaplinsky vs. New Hampshire (1942)

• Created the Fighting Words Doctrine, which states that insulting or provocative speech directed at an individual that is likely to incite violence is unprotected

Cohen vs. California (1971)

• Vulgar speech is protected if it is not personally direct or inherently disruptive

Texas v. Johnson (1989)

the Court held that Johnson’s burning of a flag was protected expression under the First Amendment as symbolic speech. The Court found that Johnson’s actions fell into the category of expressive conduct and had a distinctively political nature 

R.A.V vs. St. Paul (1992)

• The government cannot selectively ban hate speech based on its content

True Threats

Statements or actions in which an individual communicates a serious expression of intent to commit violence or unlawful harm against another person or group. These are NOT protected under the First Amendment as they can disrupt public safety and lead to real fear or danger

Watts v. United States (1969)

The court concluded, without hearing the arguments, that the man’s statement was “political hyperbole,” therefore not a true threat

Virginia v. Black (2003)

Declared that cross burning is protected by the First Amendment as long as the act does not have the intent to intimidate

Elonis v. United States (2015)

• To be a true threat, speech must show subjective intent to threaten

Counterman v. Colorado (2023)

To establish that a statement is a "true threat" unprotected by the First Amendment, the government must prove that the defendant had some subjective understanding of the statements' threatening nature

Fighting Words are:

Constitutionally unprotected speech said in someone’s face with the intent to provoke a violent response

Robert Watts' threat against the president in his Supreme Court case was?

Constitutionally protected rhetorical hyperbole

Which of the following is a TRUE statement about the true threats doctrine outlined in Counterman?

The true threats doctrine requires prosecutors to prove the speaker communicated with recklessness to convict them of the state or federal crime of communication true threats.

In Gooding vs. Wilson, which state had its fighting words statute overturned?

Georgia

Elonis vs. United States (2015) concerned the spread of potential true threats by what means?

on social media

The Supreme Court determined in Gooding and Lewis that:

the statutes under consideration were overbroad and narrowly tailored

Free Speech in Public High Schools Currently

• Schools can punish students for speech that occurs on school grounds that causes a substantial disruption to the learning environment 

• Schools can punish students for speech that the students post to social media outside of school if that speech either causes a substantial disruption to the learning environment or poses a threat to students 

• Schools can punish students for holding up inane signs vaguely advocating illegal drug use at school-sponsored events

First Amendment Doctrine Involving Public Universities

• College campuses are not open to any and all speech - time, place, and manner restrictions are present 

• The Supreme Court has never established whether the Tinker test could apply to public universities 

• Most public university facilities, such as quads or lecture halls, are designated public forums, although some spaces (such as the Pentacrest) have been reserved as traditional public forums 

• A public university must remain neutral in who it allows to use its designated public forums, but it can publicly take whatever position it wants to in response to a controversial speaker

West Virginia State Board of Education v. Barnette (1942)

Schools cannot force students to participate in the Pledge of Allegiance

Tinker v. Des Moines (1969)

Public high school students may wear armbands to class, protesting against America’s war in Vietnam, when such display does not disrupt classes

• Students have free speech rights in school unless their speech causes a substantial disruption

What was the difference between the outcomes in the Tinker and Bethel cases?

One was expressive political speech (Tinker) while the other was deemed obscene and distracting (Bethel)

Bethel v. Fraser (1986)

At a school assembly, a student made a speech nominating a fellow student for elective office, in which they used what some people believed to be a graphic sexual metaphor to promote the candidacy of their friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which “substantially interferes with the educational process”.

• Schools can regulate lewd or indecent speech 

Hazelwood v. Kuhlmeier (1988)

The U.S. Supreme Court held for the first time that public schools can limit what appears in school-sponsored student publications on the grounds of legitimate pedagogical concerns

Healy vs. James (1972)

The Supreme Court held that Central Connecticut State College’s refusal to recognize a campus chapter of Students for a Democratic Society was unconstitutional. Public universities cannot deny student organization recognition based on their viewpoint 

Papish vs. Missouri Board of Curators (1973)

• The Supreme Court held that public universities are not enclaves of immunity from the sweep of the First Amendment 

Obscenity

• content that is offensive, morally corrupt, or inappropriate according to social standards, often involving explicit sexual material or indecent behavior

Why is obscenity regulated?

It is regulated to protect public morals, maintain societal standards, and avoid content that could disrupt public decency

Regina v. Hicklin (1868)

Established an early standard for obscenity laws. This decision applied the Hicklin Rule: speech is obscene if it corrupts those susceptible to immoral influences (e.g., children)

Roth v. United States (1957)

The Court ruled that obscene material is not protected by the First Amendment. It defined obscenity as material that is “utterly without redeeming social value” and ruled that it could be regulated. It emphasized that “average persons, applying contemporary community standards,” should decide what is obscene.

Jacobellis v. Ohio (1964)

• Justice Stewart famously stated that he couldn't define what constituted obscenity, but he knew it when he saw it. This case underscored the complexities of regulating obscenity and highlighted the need for a more precise legal standard to protect artistic expression.

Memoirs v. Massachusetts (1966)

• To be obscene, “material must be utterly without redeeming social value”

• Adds depth to the Roth Test

• A) The dominant theme of the material taken as a whole applies to prurient interest in sex 

• B) The material is patently offensive because it affronts contemporary community standards 

• C) The material is utterly without redeeming social value 

Miller v. California (1973)

a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest

b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (SLAPS acronym)

What is indecency?

content that may be offensive to some people, but it is not as extreme as obscenity. Is often subject to restrictions, especially in broadcast media

How is it indecency different/like obscenity?

• Both are forms of offensive content and can involve explicit material 

• The difference is that obscenity is not protected by the First Amendment, while indecency is protected but regulated. Indecency is less extreme than obscenity and it is not entirely prohibited 

What is the FCC? How important are they to the history of deciding indecent speech?

• Who regulates what is indecent? The FCC

• The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia, and U.S. territories 

• Indecency covers explicitly broadcast industries 

Communications Decency Act of 1934

• The act established a legal basis for regulating wired and wireless communications 

• The Federal Communications Commission was founded because of the act

  • Replaced the Federal Radio Commission 

FCC v. Pacifica (1978)

• George Carlin’s “Seven Words” Routine 

  • Outcome: FCC does have some limited ability to regulate based on time, audience, and method of transmission

  • To be obscene, material must be utterly without redeeming social value”

Sable v. FCC (1989)

• Communications Decency Act blocked the transmission of both obscene and indecent commercial telephone messages

• Court upheld federal restrictions on obscene material (according to Roth), but struck down blockage of indecent messages for adults

Denver v. FCC (1996)

• Ruled that cable operators can regulate indecent content but that broad, government-mandated restrictions on indecent programming violate the First Amendment

Reno v. ACLU (1997)

Portions of the 1996 Communications Decency Act was ruled unconstitutional since it was overly broad and vague in its regulation of speech on the Internet, and since it attempted to regulate indecent speech, which the First Amendment protects.

Fox v. FCC (2009/2012)

The Supreme Court held that the FCC's standards, as applied to the broadcasts in this case, were unconstitutionally vague, which meant that they were unconstitutional according to the Fifth Amendment. The FCC did not give proper notice to broadcasters that they would be fined for fleeting expletives

Why is political speech more important than all other types of speech?

Political speech is considered the most important type of speech because it is central to democratic governance and the protection of individual freedoms. It allows people to express opinions, criticize the government, advocate for change, and participate in public debate—all essential for a functioning democracy. The First Amendment prioritizes political speech because without it, citizens could be silenced or oppressed by those in power

Which organization outlines political speech regulations?

The Federal Election Commission (FEC) regulates donations, spending, and advertising related to elections. It ensures political campaigns disclose contributions and spending while enforcing limits on campaign contributions to prevent corruption.