First Amendment: Freedom of Speech

First Amendment: Freedom of Speech

Extent of Supreme Court's Interpretation

  • The Supreme Court's interpretation of the First Amendment reflects a commitment to individual liberty, but this right is not absolute.
  • Limits exist on free speech, though the government faces a high bar to censor citizens.

Symbolic Speech: Tinker v. Des Moines (1969)

  • Background: Students wore black armbands to protest the Vietnam War.
  • School's Response: The administration prohibited the demonstration due to fear of disruption.
  • Supreme Court Ruling: Upheld students' right to symbolic speech.
  • Acknowledged school administrators' obligation to maintain peace.
  • Ruled there was no actual disruption, only fear of disruption.

Limits to Free Speech: Morse v. Frederick (2007) (Non-Required Case)

  • Background: A student held up a "Bong Hits for Jesus" sign at a school-sponsored event and was suspended.
  • Supreme Court Ruling: Upheld the suspension.
  • The sign promoted illegal drug use and had no redeeming value.

Compulsory Symbolic Acts: West Virginia Board of Education v. Barnette (1943) (Non-Required Case)

  • Background: A school district required students and teachers to salute the flag.
  • Jehovah's Witnesses' Claim: This violated their beliefs and right to free speech.
  • Supreme Court Ruling: Agreed with the Jehovah's Witnesses.
  • Compulsory symbolic acts cannot be forced by the government.
  • Such compulsion would crush dissent in a free society.

Balancing Individual Freedom and Social Order

  • The Court attempts to balance individual freedom with social order when making decisions on free speech issues.
  • Tinker and West Virginia cases favor individual freedom.
  • Morse and Schenck cases favor social order.

Rules Guiding the Court's Decisions

Time, Place, and Manner Regulations

  • Content-neutral regulations.
  • Restrict when, where, and how speech is delivered, not the actual content.
  • Example: The "Bong Hits for Jesus" sign might have been permissible in a different context (e.g., the student's room, a public bike race).

Defamatory, Offensive, and Obscene Speech

  • Defamation: Using speech to harm someone else is almost never protected.
  • Example: Dominion Voting Systems' defamation lawsuits against OAN and Fox.
  • Dominion was falsely accused of switching votes from Trump to Biden.
  • The resulting reputational damage hurt their business.
  • Offensive or Obscene Language: A very high bar is required for the government to silence such speech.
  • It is hard to define because it's always kind of a moving target.

Clear and Present Danger Rule

  • Speech can be silenced if deemed dangerous.
  • Established in Schenck v. United States.
  • Schenck v. United States:
    • Charles Schenck, a socialist, distributed pamphlets urging young men to avoid the draft during WWI.
    • Arrested for violating the Espionage Act (criticizing the government).
    • Court Ruling: Schenck's conviction was constitutional.
    • His pamphlets incited unlawful action, creating a clear and present danger.

Brandenburg Test

  • The clear and present danger test is no longer the standard.
  • Established in the 1960s, the Brandenburg test made it more difficult to censor speech.

Mathematical Expressions

  • No mathematical expressions presented.