First Amendment: Freedom of Speech - Summary

First Amendment: Freedom of Speech

Protected vs. Unprotected Speech

  • Protected Speech:
    • Private, political, commercial, and artistic speech.
    • Conduct and silence as speech.
    • Speech on the internet.
  • Unprotected Speech:
    • Obscenity, fighting words, incitement to violence, threats.
    • Defamation (libel and slander), perjury, blackmail, solicitation/conspiracy.

West VA Board of Ed. v. Barnette (1943)

  • Issue: Does mandating the Pledge of Allegiance violate free speech?
  • Rule: First Amendment protects against forced speech by the government.
  • Conclusion: Mandatory Pledge of Allegiance is unconstitutional.

Brandenburg v. Ohio (1968)

  • Issue: Can a state criminalize speech promoting crime or violence for political reform?
  • Rule: Speech can be prohibited if it:
    • (1) incites imminent lawless action and,
    • (2) is likely to produce such action.
  • Conclusion: Law was unconstitutional as applied because it didn't consider if the words would lead to action.

Tinker v. Des Moines School District (1969)

  • Issue: When can a school limit student's free speech rights?
  • Rule: A school must show that speech or conduct "materially and substantially" interferes with the school to limit it.
  • Conclusion: School's actions were unconstitutional; students won.

Spence v. Washington (1974)

  • Issue: When is conduct considered speech?
  • Rule: Conduct is speech if:
    • (1) there is an intent to convey a message, and
    • (2) the message is likely to be understood.
  • Conclusion: Statute was unconstitutional as applied to Spence.

United States v. O’Brien (1968)

  • Issue: Is burning a draft card protected conduct?
  • Rule: Intermediate scrutiny - A law may regulate conduct if it:
    • (1) promotes an important government interest that is content-neutral,
    • (2) is not aimed at limiting speech,
    • (3) is narrowly-tailored.
  • Conclusion: The law is constitutional; O'Brien loses.

Chaplinsky v. New Hampshire (1942)

  • Issue: Did NH law prohibiting offensive speech in public violate free speech?
  • Rule: "Fighting words" (words that inflict injury or incite breach of peace) are NOT protected.
  • Conclusion: The NH law is constitutional; Chaplinsky loses.

Cohen v. California (1971)

  • Issue: Does a CA law that prohibits disturbing the peace by “offensive conduct” violate free speech rights?
  • Rule: To regulate speech content, a law must pass strict scrutiny
  • Conclusion: Cohen won; conviction overturned.

Summary

  • Fighting words (Chaplinsky)
  • Silence as speech (Barnette)
  • Incitement to violence (Brandenburg)
  • Speech and conduct in school (Tinker v. Des Moines)
  • Laws regulating conduct - Intermediate scrutiny (O’Brien)
  • Conduct as speech (Spence)
  • Speech Content - Strict scrutiny (Cohen)