The Restrictions on Freedom of Speech

1. The Restrictions on Freedom of Speech

2. The 5 Major Tests The 5 Major Tests 1. “Clear and present danger” - In Schenck v. United States in 1919, Justice Oliver Wendell Holmes commented: “ The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing panic... The question in every case is whether the words used are in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to protect.” 2. “Fighting words” - In 1942 in Chaplinsky v New Hampshire, the Supreme Court first specified that an utterance which provokes another to anger but has little if any social value may be considered “ fighting words.” Thus, it violates the concept of freedom of speech. 3. Obscenity violates the public sense of decency and is unconstitutional. The Supreme Court has not, however, been able to define the term with any precision. 4. Sedition, or advocating the violent overthrow of the government, is unconstitutional. 5. Slander, or exposing a person or group to contempt, ridicule, or hatred and adversely affecting the person or group’s reputation, is a violation of freedom of speech. The Court has further refined its definition of “slander” to exclude all of the following: the truth; something said with the consent of the individual; an accidental speech in which no negligence or malice was intended because an individual was quoted accidentally; and something said by a privileged speaker protected by immunity, such as a member of Congress speaking to colleagues or a parent speaking to a child.