Freedom of Speech
Freedom of speech is super compiled
have to come up with a list of all possible words said, people saying, people listening, and their contexts
View the rulings as hints to determine what speech is protected and what isn’t
Schenck
Schenck is a anti-war protester (WW1). Super scary time for the US. We were worried that Americans could be the type of solders needed. US also had the first major pandemic (influenza pandemic). Schenck is sending out literature about not going to war, avoiding the draft because we are serving the rich man interests, not our interests.
Violated the espionage acct (hinder gov efforts to do something they are allowed to do)
IS Schenkc’s speech protected or not?
RULE: You can say things in times of peace that you cannot say in times of war. context matters when determining if it is protected or not protected. (why you cannot say fire in a theater). There are times when teh nation is faced with a “clear and present danger,” and when that happens the standard for what speech is protected changes.
who determines what is clear and present danger?
Every time someone is tried and convicted under it, and they appeal, a appeal court determines weather it was used correctly or not
Gitlow
Gitlow is a communist in NY handing out communist materials. in the 1920s, it was very popular. If they accept the communist doctrine, they are inherently agreeing for a violent uprising against capitalism. Gitlow is arrested for promoting a revolution.
Should Gitlow be allowed to hand out communist literature in the street?
Supreme court rules against Gitlow. Reason is that some speech has a “dangerous tendency” to create some evil that the government has a right to prevent. They compared it to a catalyst in a chemical reaction, speeding up the evil. Circumstances still matter (Morris lecturing about communism vs Gitlow handing out literature)
Brandenburg
1960s. Ohio, a hotbed for KKK. Brandenburg is head of KKK and wants to have a rally at his farm. He calls the media to get more attention and more converts.
Brandenburg gives the keynote address and says “people should get revenge on the elected officials who are giving black people rights” Brandenburg is arrested and he feels his right to free speech is violated
RULING: His rights were violated. His speech is protected. WHY? In order for speech to be banned, “lawless action must be imminent” Context matters. If the speech was given to a bunch of drunk. violent people, lawless action would be considered imminent.
Cohen
Vietnam war protester. has to pay a fine, goes into the courtroom is is wearing a green army jacket that says on the back “fuck the draft”. The courtroom is filled with officials. Judge hits him with a disrupt the peace.
Cohen says that his speech is protected, California is saying it is not.
RULING: The speech is protected. WHY"? for speech not to be protected, it must be “fighting words” (words likely to bring people to fighting/violence” What determines if words bring people to violence (the president) → context, circumstances. Wearing the jacket on campus vs at the VA hospital.
O’Brien
Vietnam war protester. One way to protest is to “bog down the war machine” so it takes forever. The law said everyone had to have a draft card/number. Protesters would call the army and say I lost the card. the army would send one and this process would repeat.
Something fun you could do is go to a anti-war protest, and burn your draft card in public. after this the under cover FBI people would rush up and arrest you. WHAT OBRIEN DID
The law changed and O'Brien did know
RULING: No, the speech was not protected. WHY? Raising army’s and navies were “vital government interest” (The most important interest, a giant weight that tips the scale towards government interests). This means that the SCOTUS judgment, this interests outweighs the individual interests of free speech. Context matters → (wouldn’t matter today because we don’t have a draft)
Johnson
Protesting American foreign/domestic policy. Upset at republicans . He decides to go to the RNC and outside of it in front he burns the American flag in protest. Republicans are really into the flags and GUNS! Really bad idea for Johnson. Convention was located in Texas. (More guns) . Texas has a law that makes it illegal to desecrate symbols of the US government.
Tried and convicted
RULING: it is a protected form of speech. The Texas law violated the first amendment freedom of speech. The flag is a symbol. If the gov makes it illegal to desecrate a symbol, then it means the gov controls how we think. One step closer to making us control how we think when we see things. The flag can be a symbol of justice or imperialism. Does not mean that you can burn a flag wherever you want. (context matters). physical and social context. You can burn a flag in Erie for protest as long as you follow all the rules of open flame burning in Erie (certain distance from structure, access to fire-ending materials, make sure the flames can be covered). You cannot burn them in social circumstances when lawless action is imminent (burning a flag on Veterans day in front of the VA hospital).
NSM V Michigan
Question Speech Proper
Does this Michigan permit which states any speech that promotes hate regarding Jews or persons of any faith, ancestry, or race violate the 1st and 14th amendments to the constitution
Decision
It does not violate the constitution
Reasoning
In Brandenburg, they ruled that Speech can be banned when “lawless action is imminent”. Since they were on the steps of the state capitol, lawless action is imminent. Context matters. If they were having the rally in the middle of nowhere, then it
In Gitlow, handing out printed material “dangerous tendency” to create some evil that the government has a right to prevent. The government has a right to protect the safety of their citizens for violence. This means that the printed out pamphlets of the NSM were unconstitutional as they had a dangerous tendency
In Cohen Fighting words are not protected. Because the speech said during the rally was very racist, anti-Jew, and they were said in front of the courthouse, then it is not protected by the constiutiton.
Question Symbolic Speech
Does this Michigan permit which states any Nazi symbols, uniforms are not allowed in any rally violate the first and 14th amendments to the US Constitution?
Decision
I think that it does not