Freedom of EXPRESSION

1. Freedom of EXPRESSION

2. Speech/Expression that is ILLEGAL • Clear and Present Danger • Libel • Slander • Obscenity

3. Libel • Written statement that defames the character of another • Must prove the statement was false • Public officials must also prove “actual malice”

4. Slander • Spoken statement that defames the character of another • Must prove the statement was false • Public officials must also prove “actual malice”

5. Controversial Speech that is LEGAL • Symbolic Speech • Action meant to convey a political message • Burning a draft card - illegal • Burning an American Flag - legal

7. Schenck v. US 1919 Facts of the Case  • During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question  • Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

8. Decision: 9 for US, 0 for Schenck • Clear and Present Danger Test

9. Gitlow v. New York 1925 Facts of the Case  • Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Question  • Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?

10. Decision: for Gitlow • 14th Amend applies the 1st Amend to the States

11. Brandenburg v. Ohio 1969 Facts of the Case  • Brandenburg, a KKK leader, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Question  • Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

12. Decision: 8 for Brandenburg, 0 for Ohio • Will speech incite lawless action

13. Tinker v. Des Moines 1969 Facts of the Case • John Tinker, 15, his sister Mary Beth Tinker, 13, and Christopher Echardt, 16, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Fearing that the armbands would provoke disturbances, the school district resolved that all students wearing armbands be asked to remove them or face suspension. When the students wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Question  • Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections?

14. Decision: 7 for Tinker, 2 for Des Moines • Speech did not interfere with school discipline

15. New York Times v. US 1971 Facts of the Case  • In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. Question  • Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

16. Decision: 6 for NYT, 3 for the US • Prior Restraint is unconstitutional

17. Miller v. California 1973 Facts of the Case • Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question  • Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

18. Decision: 5 for Miller, 4 for CA • Obscenity is not protected, applying contemporary “community standards”, “lacks serious literary, artistic, political, or scientific value”

19. Hazelwood School District v. Kuhlmeier 1988 Facts of the Case • The Spectrum, the school-sponsored newspaper of Hazelwood East HS, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. Question  • Did the principal's deletion of the articles violate the students' rights under the First Amendment?

20. Decision: 5 for Hazelwood, 3 for Kuhlmeier • Schools can limit speech that is inconsistent with the shared values of social order

21. Texas v. Johnson 1989 Facts of the Case  • In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question  • Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

22. Decision: 5 for Johnson, 4 for Texas • Expression of symbolic speech of a political nature

23. Can a school punish a student for making a sexually suggestive political speech at a school rally?Bethel School district v. Fraser, 1986

24. YES

25. Can a business owner use the mail to invite people to buy materials considered obscene by postal workers?Roth v. United States, 1951

26. NO

27. Can a CIA agent publish information about the agency without the CIA’s permission?Snepp v. United States, 1980

28. NO

29. Can a police officer wear long hair, in violation of code, to protest the police dress code?Kelley v. Johnson, 1976

30. NO

31. Take out a HALF Sheet of PaperYou Can Use the NotesYou took todayNumber it 1 thru 5

32. # 1 • According to Prior Restraint, when is the Press free from government censorship?

33. # 2 • In what way was Schenck, creating a Clear and Present Danger?

34. # 3 • What is the difference between LIBEL and SLANDER?

35. # 4 • Name ONE of the standards used to determine if an act or message is OBSCENE?

36. # 5 • What term is used to describe the type of speech that is meant to “convey a political message”?

37. Can a school punish students who wear black armbands to protest a war?Tinker v. Des Moines School District, 1969

38. NO

39. Can a school principal remove “inappropriate, personal, sensitive, and unsuitable” content from a school newspaper?Hazelwood School District v. Kuhlmeier, 1988

40. YES

41. Can Congress require cable companies to show sexually explicit material only during late-night hours?U.S. v. Playboy Entertainment Group, 2000

42. NO

43. Can a state prohibit newspaper advertising of abortion services?Bigelow v. Virginia, 1975

44. YES

45. Can the government prohibit casino advertising?Greater New Orleans Broadcasting Association v. United States, 1999

46. NO